Background Reading:

• “‘An Inclusive Constitution’: Professor Julie Suk on the Equal Rights Amendment,” Carrie Baker, Ms. magazine, Apr. 2, 2021.
• “Gender Discrimination Is Enshrined in Law. This Needs to Change.” Michelle Milford Morse, Ms. magazine, Mar. 7, 2022.
• “After Misogyny: How the Law Fails Women and What to Do about It” by Julie Suk

Transcript:

00:00:00 Michele Goodwin: 

Welcome to 15 Minutes of Feminism, part of our “On the Issues with Michele Goodwin” at Ms. Magazine platform. As you know we are a show that reports, rebels, and we tell it just like it is, and we count 15 minutes in feminist terms. So, we jump right in with our guest on this show, and I couldn’t be more pleased to welcome back a friend of our show. That is Doctor Julie Suk. She is the author of the recently published book After Misogyny: How the Law Fails Women and What to Do about It, which delves into the systemic misogyny that’s embedded in the law and what we need to do in order to transcend it. 

She’s an interdisciplinary scholar and comparative legal scholar researching equality at the intersections of law, history, sociology, and politics in the United States and globally. She’s authored dozens of articles and book chapters about comparative constitutional law, the procedural implementations of equality norms in the United States and in Europe, gender quotas, women and work, and truly so much more. I was pleased to have her on the show as we talked about her last book The Unstoppable Mothers of the Equal Rights Amendment. It was the first book to chronicle and assess the 21 century revival of the Equal Rights Amendment. 

And so, I hope you sit back, take a listen. She’s just absolutely spectacular and I couldn’t be more pleased that she’s back joining us from her position at Fordham University School of Law. Doctor Julie Suk. Julie it is such a pleasure to be with you. Thank you for taking time to join us for 15 minutes of feminism.

00:02:12 Doctor Julie Suk:
Thanks so much for having me. I’m really always thrilled to talk with you Michele. 

00:02:16 Michele Goodwin:

I’m always thrilled to talk with you. Always. In fact, I remember years ago a presentation that you gave at Columbia Law School which was about women’s representation at the federal level in Congress and it was so illuminating, and you were talking about things that we are paying far more attention to today, but you were decades ahead in saying how important it was that we rethink women’s representation.

00:02:48 Doctor Julie Suk:
Oh, absolutely because I think we need to focus not just on discrimination, which is really important, but also power. Women in power. 

00:03:00 Michele Goodwin:

Wow. What a great way to begin in thinking about today and your new book After Misogyny: How the Law Fails Women and What to Do about It, what inspired the book?

00:03:14 Doctor Julie Suk:
Well, I wrote the book after many years of research thinking about some differences I observed between legal feminism in the United States and legal feminism in Europe, Latin America, Asia, and other parts of the world and I think that of course there’s been a global movement and there’s a shared set of concerns but I really wanted to get the US feminists in the legal context to engage more with developments around the world and also with developments in interdisciplinary feminist theory and that’s really how I started to write the book. As I mentioned, one of the major differences in points of emphasis are the focus on discrimination versus the focus on getting empowered. 

00:04:09 Michele Goodwin:

On that note, when one first opens the book you have the inscription: “For all the women of the world who struggle invisibly to make it better for all of us.” There are many things that people can choose or choose not in terms of dedication but it’s as if when one opens the book this is a dedication to the women of the world who’ve done the invisible labor of forging better societies around the world and including here in the US.

00:04:37 Doctor Julie Suk:
Absolutely. That’s largely what the book is about. We focus a lot on the ways in which the law has sanctioned violence against women for generations and the ways in which feminists have struggled to overcome that violence and discrimination, and there’s another dynamic that’s part of that but encompasses much more, which I call over entitlement and over empowerment, and I’m not just talking about the over entitlement of men to women’s sexual services or invisible labor but also the over entitlement of society to women’s forbearance and sacrifices that so often we take for granted so many things that women do. 

Not just the violence that women put up with but also the work that women put to the benefit of all that goes under compensated and under valued and ignored. This is where I think it is actually important to think about even things like motherhood and care giving as not just a burden or a form of discrimination but something that has great societal value that we don’t give enough credit for and what would our legal institutions in society look like if we properly valued all of the sacrifices that women make to reproduce and raise the next generation. 

00:06:00 Michele Goodwin:
Well, when one thinks about how you have framed the book itself it tells such an important and powerful story, so there’s a part one how the law fails women, misogyny beyond misogynists, and that really intrigues me. It’s something that I’ve thought about too because we may tend to think about where women are as women’s failures. In fact, that’s how it’s been painted basically in society. Women would be further ahead if women were just smart enough. Women would be further ahead if they just had the right muscles and right body type. Women would be further ahead if they just weren’t so emotional. 

Law has nothing to do with where women are today and right away it seems that you throw a brick on the glass of those presumptions which I think are so incredibly important. So, can you talk a bit about what inspired that type of framing because that’s what I think you’re doing which is saying no the emperor has no clothes here. Let me show you in fact what has been the role of law in in fact affecting women’s status in society. 

00:07:13 Doctor Julie Suk:
So, the role of law I think one of the problems is that we think that living in a liberal constitutional democracy that has committed to equality, including gender equality, that means the end of patriarchy because if you think of patriarchy as a legal system it was a legal system that did not believe in gender equality and in fact had gender inequality as a foundational feature, meaning women have no rights. Women are represented in the public sphere by men. Women can’t own property. That’s patriarchy, and a function of what it means to have a liberal democracy is we dismantle the exclusion of women from rights and then we expect patriarchy to no longer exist. It appears that what actually happens is you get rid of patriarchy but then you get misogyny. 

Misogyny being the undervaluation of women and it being sanctioned in law even though the official position of law is that women are equal, and the official position of law is related to the dynamic that you just mentioned, that it’s assumed that if women do not actually have equal outcomes it’s their own fault rather than because there are legal institutions that are undervaluing and systematically benefiting from their invisibility. And so, I see that as not only a violence for which women need to be compensated, it’s that too of course, but a need to really think about all the ways in which society benefits from the disadvantages that women sustain and then to reorganize our infrastructures and legal institutions to give credit where credit is due, and it could mean not only prohibiting discrimination, that is not only saying equal treatment between women and men but ensuring that women are equally represented in all our political institutions. 

This is something that’s been really important in a lot of other countries, making sure that women have gender parity in Parliaments or on corporate boards and this is an idea that we actually struggle with a lot under our own legal guarantee of equality in the United States. Once you have a rule like there’s one that was adopted in California that says that you have need to have at least one woman on a corporate board of directors. You need to have equal representation. Once any such rule is adopted, there’s always equal protection litigation claiming that that rule is gender discriminatory and that’s something I think is very bizarre, but it makes sense in light of the particular path that we’ve taken through discrimination law to dismantle our patriarchy instead of thinking more broadly about dismantling it in ways that actually empower women so that we can move beyond the patriarchal order. 

00:10:12 Michele Goodwin:
So, what does that look like when we begin to dismantle in ways that actually benefit women, and it’s interesting because in the book you talk about our now past deceased Supreme Court Justice Ruth Bader Ginsburg and there’s some strategies that of course in thinking to dismantle sex discriminatory laws one of the things she tried to do was expose the ways in which men could be harmed by sex discriminatory laws, kind of turning it on its head and almost kind of reminds me of Derek Bell’s interest convergence. If you can show men the ways in which laws harm them too then maybe women are able to escape from the knees on their necks too and the cuffs that confine them at their ankles and wrists as well, but you want to think beyond that. I mean in part you’re talking about how there are flaws in that system and even more and I think what is really so powerful about your book is that you dare to make the connection to law’s misogyny and the kind of misogyny that’s created by the systems we thought would dismantle inequality for women. 

00:11:30 Doctor Julie Suk:

Absolutely. So, with regard to RBG’s strategy, I trace it back actually to her time in Sweden. She actually learned Swedish and went to Sweden in part because of the misogyny of our legal profession. She couldn’t get a job at a law firm despite being the smartest person, so she got a job instead working in academia working as a comparative law researcher. And so, she started writing a book on civil procedure in Sweden and was plopped in Sweden as they were going through this debate about the emancipation of man, meaning in order for women to be liberated from gender roles men also had to be liberated from gender roles. So, they needed to have more opportunities to do more caregiving within the family for example so that women could be out in the work place. 

This was a very important insight to Ruth Bader Ginsburg in her litigation and this is why she chose male plaintiffs, not just to be more palatable to the nine guys on the Supreme Court, which part of it was that, but also because she really wanted the gender equality agenda to be comprehensive, that a total change in the way we organize our lives, not just discrimination. But I think one of the issues is that as a lawyer you bring that into constitutional litigation and then courts can only do so much. They can strike down those laws, but courts can’t build an infrastructure after they strike down those laws that are based on stereotypes, and I think what you see happen in Sweden is something totally different. They don’t even have anti-discrimination law in Sweden until years later but what they do have is a government that makes policy.

The constitutional revolution that they get in Sweden in the 60s is not anti-discrimination. They switch from a bi cameral legislature to a uni cameral legislature and they are actually able to implement all these policies including childcare centers and paid parental leave for men and women and those are the things that really make a difference pretty fast to whether or not men are doing more care giving in the home, and this is what I want to pay attention to, that it’s not just having laws that say we’re not going to make sex distinctions or use stereotypes anymore. It’s actually having a government that can put dollars and bricks behind those observations in building an infrastructure that makes that gender norm transformation possible.

00:14:02 Michele Goodwin:

Wow. This is what makes your book so insightful, so powerful because you tap on matters that it seems that law has been very slow to respond to and quite courageously, right. So, over time there have been theories about how to advance women’s standing in society, stature, you know equality and beyond, and you have teased about, talked about, written about well let’s actually not buckle over when we hear about quotas. Let’s look at what that actually ends up looking like and now you’re talking about let’s look at infrastructure. What does that look like, bricks and mortar and more philosophically and physically as well and you’re doing that by also talking about misogyny which it seems to me that that scares some people. That scares some men. That seems like a bridge too far. 

And a question that you ask in the book is if misogyny is not hatred of women, then what is it, right? So, can you unpack that a little bit and then we can talk about this bricks and mortar. 

00:15:10 Doctor Julie Suk:

Absolutely. So, misogyny is not only hatred of women but the systematic undervaluing of women and not just undervaluing but undervaluing in ways that benefit everyone else and particularly a society controlled by men. It benefits men but it also benefits the collective and I think a very good example is abortion, and Michele I just want to take this moment to say how much I appreciate all of the ways in which you’ve had such an inspiring and leading voice after the Supreme Court’s decision in the Dobbs case to terminate the women’s right to abortion in the United States. 

I think the abortion issue and just taking your frames from earlier, it’s about how we regard pregnancy as a culture and as a legal system in this country, and in my chapter about abortion in the book “Misogyny and Maternity,” I argue that the real problem with banning abortion is not just the privacy rights violation. It’s really that you are forcing people to be mothers and that you are benefitting, the society is benefitting from making that choice. You get all these people who are workers and citizens. They get raised for free and you are forcing that sacrifice and not even compensating it. 

If you lived in a world where the state actually valued that sacrifice more women would actually choose motherhood. They wouldn’t choose abortion if they lived in a world where you didn’t have high rates of maternal mortality, especially for black women. If you lived in a world where there was actually paid parental leave for mothers and fathers, anyone who was a parent. If you had all of those things, if you had pregnancy accommodations that were moving a little bit in that direction because, finally, Congress passed the Pregnant Worker Fairness Act just like a couple months ago. So, if you had all of those parts of the bricks, that’s the infrastructure, if you had all of those things those would be steps towards fully valuing the sacrifices women make for the benefit of all and having a legal order committed to that.

These are developments you see in other countries, not just because other countries have worked out constitutionally reconciling gender quotas requiring equal representation, balanced representation of the genders in positions of power like legislatures. So, there has been developments since the 1990s in many European countries and Latin American countries and Asian countries towards balanced representation positions of power. Now we’re seeing in Ireland, and Ireland is a super interesting example because they use the constitutional referendum process to transform abortion law in the direction of liberalization just in the last five years. More recently in Ireland they’re talking about having a constitutional amendment not only on gender equality but on rethinking the constitutional provisions about valuing care inside and outside the home. Right now, they have an amendment that does it in very gender stereotype terms. It values women and their contributions in the home and that is based on a gender stereotype, but I do think that a provision that values the contributions of women in the home is actually a stepping stone and has become one in Ireland towards a gender neutral valuing of care giving as something foundational to what keeps their society going and what keeps their democracy alive and thriving. 

00:19:05 Michele Goodwin:
It’s an acknowledgement as well. So, what you’re also saying is that yes it is gender stereotyped, which it is, and it tells us something about what was the starting point, where we are now, sort of acknowledging that what has been foundational in so much of Western culture has been that the work at home expectations associated with home but at least it sort of allows a sort of clear lens into what is going on, what is really taking shape and in your book is one where it’s not just the US naval gazing but it does turn abroad at many different turns looking at what has been happening in the rest of the world. 

Before we wrap up because this goes by way too quickly, and as we’re doing this I’m just thinking boy it would just be great to spend more time with you Julie, so I’ve been thinking maybe in New York we have to get together for dinner, and then I’m thinking there needs to be a congressional office that you lead an advisory group that helps us to get there. I mean really, really there should be. There really should be.

00:20:28 Doctor Julie Suk:

Well, many countries around the world have ministries of gender equality. 

00:20:33 Michele Goodwin:
Yes. Yes, we need one and my vote is for you to lead or you to advise it. Seriously. You can lead us into that promise land. So, with your book, I just wanted to let our audience know just what they can find in the book. We always ask for a silver lining, so I’m going to ask about what you see as a silver lining, but I just want to give them really quickly a framing of the book. So, part one is how the law fails women, misogyny beyond misogynists and you’re looking at equal protection of feminists and misogynists. Over entitlement and over empowerment which you’ve talked about before which I think is just a brilliant framing. And by the way, Julie has just framed such wonderful titles for these chapters. A lot of people who are writing books and law professors struggle but this is just absolutely wonderful, and then misogyny and maternity, abortion bans and over entitlement. 

Then on part two which really sort of gets to that feminist infrastructures and the constitutionalism of care, it starts out with this question of what to do about it. We’re making constitutions and democracy, so for those of you who are wondering just how we get there if you turn to part two of the book Julie just so brilliantly lays it out from patriarchy to prohibition, resetting entitlements through constitutional change, even looking at rebalancing power through parity and democracy, which is something that I’ve just been so enthralled with Professor Suk’s work for a very, very long time. I have. You’ve just been ahead of the curve and courageous in that work because it takes a lot of courage to go against the tide where we’re not supposed to mention certain things, say certain words in our scholarship and there you were saying…yeah.

00:22:35 Doctor Julie Suk:
Well Michele, for me the silver lining is that failure is not failure and let me explain. So, I look at some things that people regard as huge failures in American constitutional history, the prohibition amendment and the equal rights amendment, failures for different reasons. I argue actually that prohibition is super interesting. Women got involved in a way they never had in politics for temperance and many people wonder why. It was pretty simple. In the 19th century if you don’t have any rights and the all the men who control you are getting drunk, it could get really bad. 

So, the women who got involved in the temperance movement and argued that they needed…they weren’t even trying to attack the men. They were saying it’s the liquor industry’s fault. They’re corporate interests that need to be controlled by a constitutional amendment. I try to tell that story to show not that I’m in favor of banning alcohol today but to show how a lot of things that you think are not important to women’s lived realities are actually important to women’s lived realities. So, instead of just focusing on things like discrimination we could be focusing on larger structures of power in the way we agitate for change, and then the Equal Rights Amendment, people think it was a failure because it’s just had this hundred year struggle which I’ve written about in another book where because of all of the hurdles in our constitutional amendment process and the power of men in both Congress and the legislatures it’s been so hard to add a pretty simple guarantee of gender equality to the US Constitution. 

But I want to say that it’s not a failure because number one the senate judiciary committee is holding a hearing on resuscitating declaring as ratified the ERA given that it has been ratified by the requisite number of states, albeit later than initially projected. That said, I also think that the ERA’s failure is not a failure because by mobilizing and getting involved women did change the constitution just be advocating for an amendment that hasn’t even been added to the constitution yet. Women were able to change so many things in the law, get Title IX, get the Violence Against Women Act, Title VII. There are all these things that are advocating for a constitutional amendment actually changed. There are other stories. Women in Chile have been trying to write a new constitution. The draft constitution failed in referendum this fall however they are starting a new process, and they have totally shifted the baseline on what people expect a constitution to do with regard to rights that are important to women, climate, indigenous representation and so forth. So, I think the silver lining is people will tell you that you failed. Don’t believe it. 

00:25:39 Michele Goodwin:

What a powerful way to conclude our show. I want to thank you so much. You’re just brilliant. Audience you’ve been hearing from Professor Julie Suk, the author of After Misogyny: How the Law Fails Women and What to Do about It, and as well while you’re picking up that book make sure that you also pick up We the Women, the Unstoppable Mothers of the Equal Rights Amendment also authored by Professor Julie Suk. Julie thank you so much for joining me today.

00:26:11 Doctor Julie Suk:

Thank you.

00:26:14 Michele Goodwin:

Guests and listeners, that’s it for today’s episode of On the Issues with Michele Goodwin at Ms. Magazine. I want to thank each of you for tuning into the full story and engaging with us. We hope you’ll join us again for our next episode where you know we’ll be reporting, rebelling, and telling it like it is. For more information about what we discussed today, head to MsMagazine.com and be sure to subscribe, and if you believe as we do that women’s voices matter, that equality for all persons cannot be delayed, and that rebuilding America and being unbought and unbossed and reclaiming our time are important then be sure to rate, review, and subscribe to On The Issues with Michele Goodwin at Ms. Magazine, an Apple podcast, Spotify, iHeart Radio, Google Podcast, Stitcher, wherever it is that you receive your podcasts. We are ad free and reader supported. 

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