Julie F. Kay - Legal Momentum

A Loving Marriage

2008-05-10T04:00:00Z

Over forty years ago the Supreme Court in Loving v. Virginia struck down a law that banned marriage if the bride and groom were not of the same race. The death last week of Mildred Loving, the aptly named bride in that case, reminds us of how far we’ve come, and how far we have to go. Prejudice remains embedded in marriage laws that ban same sex marriage in every state except Massachusetts.

It’s easy to envision a time in the not too distant future when people everywhere view bans on same sex marriage with disgust equivalent to how we now regard bans on interracial marriage. It seems incredible to us today that any two people could be prohibited from marrying because they are of different races. Yet it remains widely accepted to prohibit two people from marrying because of their sex.

The harm that bans on marriage cause to individual families is obvious. A wide range of necessary legal protections and social and economic benefits are denied families who cannot access marriage, including: health care benefits, paid care taking leave, parental rights, estate planning and other lifetime benefits, to name a few. The intangible status that marriage conveys -- those rituals and rites that emanate from marriage -- is even harder to quantify.

What is less recognized is that restricting the institution of marriage to opposite-sex couples only perpetuates sex stereotypes about the “proper roles” of men and women within marriage. In denying same-sex couples the right to marry, courts nationwide have relied on outdated sex stereotypes about gender roles within marriage, and particularly foster misconceptions about parenthood. The “norm” is strictly defined as every child having a mother and a father, and implicit in this assumption is the notion that mothers and fathers necessarily fill distinct and separate roles. Mom stays home and teaches care giving; dad goes to work and teaches baseball on weekends.

The conservatives who mount the most vigorous attacks on same-sex marriage continue to embrace gender-specific parenting roles. They often hark back to a fictitious time of Ozzie and Harriet, and Ward and June, invoking such stereotypes as real life role models. Focus on the Family’s James Dobson is clear in his preference: “I don't believe any arrangement for children can compete with an intact family where the mother raises her kids and the father is also very involved in their lives.”

Although courts may not be as blatant in their parental stereotyping when they uphold bans on same sex marriage, it is clear that preconceived notions around parental roles are at the heart of much opposition to same sex marriage. For example, New York’s highest court lacked scientific evidence about the benefits to children when parents conform to gender stereotypes, yet noted that “[i]intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like.” Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006). The court’s "intuition" assumes that having one male and one female parent demonstrates to children what men as a group and women as a group are like; it ignores the individual differences that do not align with gender stereotypes. While each sex possesses its own set of defining characteristics, there is considerable variation and overlap of characteristics between men and women. Women can, and do, teach baseball; men can, and do, demonstrate care giving.

State statutes validating marriage only between a male and a female expressly discriminate on the basis of sex. A woman who wants to marry her (female) partner is denied this privilege simply because she is a woman. A man in her place would be free to marry any woman, even one he had never met before. Similarly a man who is denied marriage to another man faces discrimination on the basis of his sex. Many states already reject such discrimination in parenting and do allow same sex parents to adopt or foster children. Yet these same parents are prevented from marrying each another simply because of their sex.

State level challenges to bans on same sex marriage are now pending in Iowa, California, and Connecticut. (With assistance from the law firm of Irell and Manella, Legal Momentum has submitted amicus briefs in the cases in Iowa and California, urging the courts to recognize the illegal gender stereotyping such bans perpetuate.)

That such stereotypes and homophobia remain ingrained in the law is shameful. Forty years later our courts still have a lot to learn from Loving. It is time to reject the outdated stereotypes about same sex marriage and to genuinely recognize that families come in all shapes and sizes and colors.

What We’re Not Saying About Sex – And Who It’s Hurting

2008-04-11T04:02:00Z

We’re talking about sex. Sex in New York and sex in DC. Sex captures the headlines and dominates the news scrolls. But we’re not teaching about sex. And that’s harmful to the health of young women and girls.

While we squirm about Former Governor Eliot Spitzer’s sexual crimes and titter about other politicians’ sexual dalliances, a new report from the Centers for Disease Control and Prevention (“CDC”) reveals skyrocketing rates of sexually transmitted infections among teenaged girls, and we barely blink. Perhaps this new information should come as no surprise given that our federal policy on sex education rejects teaching prevention, and instead preaches abstinence only.

Legal Momentum’s new report, Sex, Lies & Stereotypes: How Abstinence Only Programs Harm Women and Girls, provides a comprehensive examination of the nature and extent of federally funded abstinence-only programs. The report exposes the political motivations behind these ineffective programs and highlights the harm they cause to women and girls in particular.

Despite conclusive evidence demonstrating the ineffectiveness of abstinence-only programs, as well as mounting evidence of their harmful effects, such programs continue to receive unprecedented and increasing levels of government funding each year. Over $1.5 billion in federal and state funding has been allocated for abstinence-only programs since they began in 1982, and funding has flourished throughout the Bush administration.

Abstinence-only funding streams specifically invite applications from religious and secular organizations that oppose abortion and contraception. In sharp contrast, comprehensive sex education programs that provide information about contraceptive use and practicing safe sex need not apply. The federal guidelines state that programs may not “encourage the use or combining of any contraceptives in order to make sex ‘safer.’” If abstinence fails, there is no back-up.

Girls and women bear the brunt of this nonsensical policy. Females have a greater risk of contracting an STI through unprotected heterosexual sexual activity and generally suffer greater life-long health consequences than males do. According to the new CDC data, one in four teenage girls has a sexually transmitted infection and African-American girls are at more than twice the risk as white girls. HIV/AIDS is the gravest risk posed to young people by unprotected sexual activity, and right now people under the age of 25 are the fastest-growing category of new HIV infections. Again, young minority women are particularly at risk of contracting this disease.

Abstinence-only programs not only lack the accurate and complete sexual health information needed to combat this epidemic, but by failing to teach about condoms, and even disparaging condom use, they are likely to increase teens’ risk of contracting an STI. A study of adolescents who took virginity pledges -- a common feature of abstinence-only programs -- found that while pledgers delayed sexual debut slightly, when they did engage in sexual activity, they used condoms less frequently and were less likely to be tested for STIs than non-pledgers. Also, students who took part in abstinence-only programs were more likely to incorrectly believe that condoms do not protect against STIs. If teens are taught in school that condoms provide no advantage in preventing pregnancy or disease, they certainly have no reason to use them regularly.

Young women and girls are at great risk of unplanned pregnancy as well. CDC research shows that teen birthrates in the United States have jumped 3% from 2005 to 2006 after more than 15 years of steady decline. A lack of information about how to prevent pregnancy -- other than by remaining 100% abstinent -- clearly impacts girls far more than boys for the simple reason that only women and girls become pregnant. Teenage girls who have given birth all too often bear primary or sole responsibility for raising their children, sacrificing their own educational or career opportunities to a great extent.

The most recent national study of sex education programs confirmed that teens receiving comprehensive sex education were less likely to report pregnancies than teens who participated in abstinence-only programs. Nonetheless, President Bush is requesting an additional $27 million in funding for the Community Based Abstinence Education Program; seeking a grand total of over $200 million for abstinence programs for Fiscal Year 2009.

As the evidence has grown, abstinence-only programs have become wildly unpopular and face increasing scrutiny by state and national governments, public health experts, women’s rights advocates, the human rights community, and concerned parents and teens. Already 17 states have rejected federal funding for abstinence-only programs provided under the federal Title V program. These states recognize that spending the required state matching funds on such harmful programs is beyond wasteful. Similarly, surveys of parents have repeatedly shown they do not favor such an overly-simplified “just-say-no” approach to sex education for their children.

Clearly we need a more effective approach than abstinence-only to prevent unwanted pregnancy and disease among young women and men. Young people need honest and comprehensive information about sexual activity in order to determine whether they should wait to have sex and how to make healthy decisions ifand when they do engage in sexual activity. A one-size-fits-all abstinence-only approach fits no one. It fails in practice and women and girls in particular get hurt.

Yet the federal government continues to preach abstinence-only. And to fund it heavily. It is past time to stop spending state and federal funds for such ineffective and dangerous programs. Let’s stop talking about politics and sex and instead start talking about the real politics of sex. And let’s teach young women how to live sexually healthy lives.

This post previously appeared in on the website of the Center for American Progress www.americanprogress.org.

You Think Contraception Is Always the Answer?

2008-03-11T04:02:00Z

“So do you think contraception is always the answer?” a teenager asked me with great sincerity in the halls of Congress last month. I had just completed a congressional briefing presenting Sex, Lies and Stereotypes: How Abstinence Programs Harm Women and Girls, Legal Momentum’s new report on how government funded abstinence-only programs detrimentally promote sexism and misinformation. The young inquirer had been part of the National Abstinence Education Association’s lobby day, a group working to preserve federal abstinence funding despite the tide of evidence demonstrating such programs’ ineffectiveness. It was pure kismet that these events took place on the same day.

Do I think contraception is always the answer? Of course not. But I can appreciate the teen’s need for a simple answer when faced with a topic as complicated as sex. If his team was preaching abstinence as a cure-all, surely then my group must be promoting contraception as the panacea? The problem is, there is no one solution that is “always the answer.”

Young people need honest and comprehensive information about the risks of sexual activity -- and how to responsibly handle those risks if they do decide to become sexually active. A one-size-fits-all abstinence-only approach fits no one. It fails in practice and women and girls in particular get hurt. Yet the federal government instead continues to preach abstinence-only. And to fund it heavily.

Sex, Lies & Stereotypes is the most comprehensive examination to date of the nature and extent of these federally funded programs. It calls on parents, teens, policymakers and anyone who cares about public health to demand an end to the senseless and harmful funding of abstinence-only programs.

Disturbing data recently released by the Centers for Disease Control and Prevention (CDC) show that teen birthrates in the United States jumped 3% from 2005 to 2006 after more than 15 years of steady decline. This evolving national crisis calls for honest and comprehensive sex education for teens about the risks of sexual activity.

The federal government has instead spent over $1.5 billion on politically motivated programs that have failed for decades. The following facts are highlighted in the report:

Reliable, scientific evidence shows that abstinence-only programs fail to positively change teens' sexual behavior.

These programs have significant potential to exacerbate the spread of HIV/AIDS and other sexually transmitted infections, as well as increase unplanned teen pregnancies.

While abstinence-only programs target both boys and girls, in practice they contain misinformation and gender stereotypes that have debilitating effects on women and girls worldwide.

Sex, Lies & Stereotypes is the outgrowth of an experts meeting Legal Momentum held in 2006 in partnership with the Human Rights Project at HarvardLawSchool and the Program on International Health and Human Rights at the Harvard School of Public Health.

At the end of the congressional day, I was sorry I did not have more time to talk with the teens in the abstinence-only lobby group. Teens are smart enough to spend the day lobbying Congress, and certainly are intelligent enough to be taught genuine comprehensive sex education. For some teens the choice to remain abstinent until marriage may always be The Answer. But if that choice ever changes or fails as things get more complicated, all teens should have learned a back-up method.

Would Wonder Woman Be “Electable” Today?

2008-02-11T05:01:00Z

During World War II, an issue of a D.C. comic book featuring Wonder Woman for President must certainly have provoked the imagination of her young fans. Battling evil and looking to right the world’s wrongs, did she inspire a generation of girls to enter politics?

Almost 30 years later an updated, more ferocious image of Wonder Woman running for President graced the cover of the inaugural issue of Ms. Magazine in 1972. And now, another 30 years on, in this election year it is clear that even Wonder Woman would face a steep uphill battle to be the first woman President of the United States.

The attacks on Senator Hillary Clinton have peeled back the pleasant “gender neutral” façade of American politics and revealed its dismal under-layers of sexism. Legal Momentum does not endorse candidates, but does endorse women's full participation in the electoral process, as voters as well as candidates. Consider below four of the more revealing aspects of how sexism has defined and heightened opposition to Clinton's campaign.

1. What Are You Wearing?

Pantsuits, pink suits, headbands and haircuts -- all have played leading roles throughout the decades of Clinton commentary, starting during her time as First Lady of Arkansas. When coverage of politics resembles a fashion week runway show, no woman can win. And while it may be simply inane or simple-minded for the press to comment so frequently on a First Lady’s attire, such commentary becomes truly chauvinist when used to define a Senator and serious presidential candidate.

When Clinton strayed from what the Washington Post disparages as her standard “desexualized uniform” of a black pantsuit, it set off a maelstrom of twitter that culminated in “cleavage-gate.” Deteriorating into frat-boy inspired political commentary, one far-right blog even referred to Clinton’s Senate testimony on C-Span as a “boob-shot.”

2. Your Mama

In a classic your-mother’s-your-pimp insult, television journalist David Shuster commented on MSNBC that Chelsea Clinton was “sort of being pimped out in some weird sort of way” by campaigning for her mother. Huh? The only candidate whose off-spring have not hit the parental campaign trail are the estranged Giuliani brood. Ironically, Chelsea was sporting a black pant suit in the video accompanying the whorish commentary. Stay tuned for more from MSNBC, the station that brings you Chris Matthews' endless tirades, which include calling Clinton a "she devil" and "witchy."

3. Why Are You “Crying?”

Candidate Clinton “welled up” at a New Hampshire campaign event and by the end of the day several news outlets falsely described her as having been “in tears” (no need to pass the tissues, there were no actual tears). By Day Two her display of “emotion” was criticized as a sign of her weakness, and simultaneously condemned as manipulative “crocodile tears” and part of an underhanded plot to play the gender card. Welling-up had not received this much attention since Congresswoman Pat Schroeder shed a few actual tears as she withdrew from the presidential race in 1987. Frustrating that twenty years later the theme song for women in politics remains Big Girls Don’t Cry?

4. Why are You Screeching?

Her opponents constantly call her “shrill.” But likewise her supporters comment negatively on her tone of voice. “Just hearing her voice, I get, like, agitated,” one self-proclaimed former supporter told the New York Times. On primary day a relative confesses to me: “I was going to vote for her but I got in the booth and I just thought about her voice.”

While women throughout time have been told in the public and private sector that they just don’t “sound” authoritative enough, never has more been at stake over the pitch of one’s voice. A female voice can give directions over a GPS system in luxury cars and update us in the New York City Subway system, yet remains too “screechy” to be Commander in Chief?

Wonder Woman can you come save us -- or do we have to wait another 30 years?

Exporting a Bad Idea

2008-01-11T05:00:00Z

The President’s Emergency Plan for AIDS Relief (PEPFAR) was created to fund HIV/AIDS prevention, treatment and care programs in the countries where women are most at risk of contracting this deadly disease. It is a well-intentioned and well funded initiative launched by President Bush in 2003, but with one major problem: its effectiveness is hampered by the inclusion of an abstinence-until-marriage requirement. Abstinence-only programs have a long history in the United States and in 2003 President Bush took steps to officially promote such programs abroad, again prioritizing conservative ideology above sexual health care.

PEPFAR has many laudable goals, including preventing new HIV infections, treating two million people living with AIDS-related illnesses, and providing care for and support for persons affected by AIDS. Its size, focus on a single disease and emphasis on treatment are noteworthy. However, PEPFAR’s rigid emphasis on abstinence-only programs has dangerous consequences, particularly for women and girls.

After the program was announced during President Bush’s 2003 State of the Union address, Congress authorized $15 billion to PEPFAR over a 5-year period. Funding guidelines require 20% of the total funds to be used for prevention programs, and 33% of that prevention money must be spent solely on abstinence-until-marriage programs (commonly referred to as the “abstinence earmark” and functionally the same as abstinence-only programs). In FY 2006, $108 million of prevention funding went to abstinence-until-marriage programs.

PEPFAR has 15 focus countries -- Botswana, Cote d'Ivoire, Ethiopia, Guyana, Haiti, Kenya, Mozambique, Namibia, Nigeria, Rwanda, South Africa, Tanzania, Uganda, Vietnam and Zambia – that are home to roughly half of all people living with HIV/AIDS, and over one hundred additional countries also receive PEPFAR funding.

PEPFAR is managed by the newly created Office of the Global AIDS Coordinator (OGAC), and the U.S. Ambassador in each country oversees PEPFAR programs. The non-profit Center for Gender Health and Equity (CHANGE) provides even more valuable oversight of the program’s abstinence requirements on its PEPFAR Watch website at www.pepfarwatch.org.

An in-depth review of the first three years of PEPFAR conducted by the Institute of Medicine in 2007 recommended abandoning the abstinence-until-marriage program requirements in order to allow greater flexibility and enhance program effectiveness. Similarly, a report by the Government Accountability Office (GAO) in 2006 criticized PEPFAR’s abstinence earmark, finding the earmark made it difficult for PEPFAR country teams to implement effective, locally relevant programming. Moreover, the majority of countries receiving PEPFAR funds requested an exemption from the abstinence earmark in 2006, citing its detrimental impact on other prevention activities.

The rigid restrictions imposed by PEPFAR force programs to prioritize ideology over locally based needs, and therefore often result in inappropriate and ineffective programming, such as requiring programs that focus a population of sex workers to emphasize both abstinence and faithfulness if they educate about condom use.

The proportion of women diagnosed with HIV/AIDS continues to increase each year, in every region in the world. In addition to physiological factors that make females more susceptible to contracting HIV and other sexually transmitted infections, gender inequality and economic hardships for many women in developing countries put them at greater risk of infection. Their inferior legal status in these nations leaves women and girls vulnerable to economic dependency and diminishes their sexual decision-making power. Other social factors, including cultural practices such as wife inheritance, virginity testing, and female genital mutilation, underscore this gender inequality, and thus exacerbate the risk faced by women and girls in these countries. Women and girls in such situations may lack the ability or the authority to remain abstinent even if they desire to do so.

By promoting abstinence and marriage as guaranteed protection from the virus in cultures where the very structure of marriage is based on gender inequality, PEPFAR programs deprive women and girls of crucial prevention strategies. Teaching only abstinence ignores the reality of many women’s lives, and in so doing puts their health and lives at jeopardy.

Last month Congress added a provision to the 2008 appropriations bill to provide State Department’s U.S. Global AIDS Coordinator (OGAC) which oversees the program, discretion to waive the abstinence earmark. Unfortunately this waiver amounts to nothing more than a symbolic step in the right direction: OGAC has embraced the President’s abstinence-only agenda and states that they will continue to guide funded countries to devote a third of their prevention funds to the abstinence agenda.

When PEPFAR reauthorization comes before Congress this year it must move to entirely strike the abstinence earmark from this program. Similarly, the Protection Against Transmission of HIV for Women and Youth Act (“PATHWAY”) would strike PEPFAR’s abstinence earmark while also requiring the development of a real strategy to address HIV prevention for vulnerable women and girls and increase condom availability.

It is time to ensure that PEPFAR’s resources are not be squandered on ideologically-driven abstinence-only programs that are a proven failure in the United States and abroad.

It’s a Man’s Man’s World in Sports

2007-12-10T05:00:00Z

I played football in college. It was brief and intramural, but nonetheless real football with helmets and pads. My roommate and I were the only “girls” on the team. And after the first tackle turned my elbow into a cantaloupe, my roommate bravely soldiered on alone.

The reason I joined the team was not to make great strides for women’s rights – although we joked that we would file a Title IX lawsuit if we failed to make the team. I joined the team because at the time I had been watching sports, and particularly college football, for almost twenty years. I wanted to know what it felt like to be on the field. Not in hot pants shaking pom-poms but with a helmet and full pads. I knew all the rules of football and had learned a few plays and now I wanted to be in the mix.

We met surprisingly little resistance from our baffled teammates. All of us were there out of a similar love of the game; there is little glory in intramural football. But it was around this same time that professional sports’ ugly views about women became apparent to me.

That same season, the not-so-subtle message that the NFL only wants women as cheerleaders and not players, fans, management or even reporters was played out on the jumbotron. In an incident that made sports history, three New England Patriot’s sexually harassed sports reporter Lisa Olson in the players’ locker room. The Patriot’s owner, Victor Kiam, picked up the ball, adding his own off-color jokes about Ms. Olson, followed by fans who ran with it by molesting a blow-up doll effigy of Ms. Olson that they passed around Boston’s baseball stadium. The NFL Commissioner’s paltry fines against the players looked enlightened in comparison.

Sadly this is not just ancient sports history. A recent New York Times expose of the “halftime ritual of harassment” of women at New York Jets football games revealed that pro-sports’ inhospitableness towards women and girls is alive and well. The Jets stadium “ritual” consists of fans shouting obscenities at women in hopes of pressuring them in to lifting up their shirts. This now-infamous “Gate D party” involves about 400-500 male fans, a few women, and a bevy of turn-a-blind-eye security guards. According to the New York Times’ reporter’s recent viewing, the scene “sometimes bordered on hostile” -- an understatement for describing women being groped and pegged with plastic beer bottles and debris, all watchable on YouTube.

The harassment is utterly embarrassing for the male fans, and even more shameful for the Jets management. Until the New York Times report, management had generally adopted a laissez faire approach, catering to the ramp mob’s thrills and ignoring any complaints by the victims. When management did take action it compounded the sexism: the few women involved in the rabble were arrested on charges of indecent exposure. Management ignored the fact that many of its paying customers felt threatened and unwelcome in this public space.

After the accounts of harassment became increasingly public, and the New Jersey Senate geared up to take action, management beat a hasty retreat, claiming that they would clamp down on the men’s behavior and end the ramp party.

Yet the harassment goes on throughout pro sports. Just this season, Anucha Browne Sanders -- one of the few women to make it to Knicks management -- won a legal victory against her employer for sexual harassment at work. Meanwhile the NFL’s swift outrage in response to Atlanta Falcon quarterback Michael Vick’s criminal indictment for dog abuse charges stood in sharp contrast to its usual response to domestic violence charges against players.

What lingers in the aftermath of the Gate D ramp events, the Knicks lawsuit and other incidents of harassment is the general sense that sports and sexism go together. Professional and college sports are dominated by male players, management and journalists, leaving little for women to do but cheer on the sidelines. Although many women do find it possible to join the fun and ignore the bawdy bits, it is time for the boys-will-be-boys approach to grow up. Can’t pro sports find a real way to engage and entertain all fans, regardless of their sex?

Beyond Wasting Money

2007-11-11T05:01:00Z

It’s like banging your head against a Congressional wall. Congress has actually increased spending for next year's abstinence-only programs by $28 million, raising the total funds to over $140 million. Oh the gall. The nonsensical decision comes just days before the latest reliable study, this one from the non-partisan National Campaign to Prevent Teen and Unplanned Pregnancy, to demonstrate that abstinence-only programs are ineffective. Moreover, these programs fail to protect the health and well-being of America’s girls and women.

These programs are wildly unpopular and already this year 14 states have rejected federal funding for abstinence-only programs provided under the federal Title V program. These states recognize that spending the required state matching funds on such harmful programs is beyond wasteful. Surveys have repeatedly shown that parents scorn such an overly-simplified just-say-no approach to sex education for their children.

Programs accepting the $141 million now budgeted for abstinence-only-until-marriage education in 2008 are forbidden from promoting the use of contraception under any circumstances, leaving young people dangerously uninformed. Moreover, many abstinence-only curricula are riddled with scientific and medical inaccuracies, including discredited information questioning the effectiveness of condoms. The programs also stigmatize gay and lesbian youth whose sexual orientation is portrayed as outside the mainstream and whose future access to legal marriage is uncertain.

So who comes out ahead? Congress provided this substantial funding increase for the largest and worst of the three federal abstinence-only funding streams: the Community-Based Abstinence Education (CBAE) program. The CBAE program, a “love child” of the Bush administration, provides the largest amount of federal funding to the most extreme abstinence-only programs. Many who receive funds to implement abstinence-only programs are inexperienced and ideologically motivated organizations that frequently have ties to conservative religious groups. CBAE eliminates any state role in allocating abstinence-only funds, clearing the way for direct funding of faith based and anti-abortion groups, many of which receive millions of dollars each year and would simply cease to exist without the CBAE program.

And who are the biggest losers so to speak? Women and girls suffer more as a result of these programs because they are the ones who get pregnant, and they are the ones who are more biologically vulnerable to sexually transmitted infections. Many of the federally funded abstinence-only curricula reinforce outdated gender stereotypes about sexuality, and portray women as naturally chaste and men as sexual aggressors. We all lose when so much federal funding is wasted.

Congress’s allocation of additional federal funding for abstinence-only programs through the CBAE program undermines the demonstrated state preference for sex education programs that more effectively meet the real needs of all youth. But playing politics with other people’s money (ours) has become the national bipartisan sport. And it’s taxpayers who end up black and blue.

Right Wing Marches Lockstep

2007-10-11T04:01:00Z

I’m jealous of the far-right’s uniformity. James Dobson, founder of the conservative megalith Focus on the Family raved in the New York Times about the good ol’ conformist time had by all who attended a secretive meeting of more than 50 self-described “pro-family leaders” in Utah recently. I couldn’t help but envy the ease with which the group reached their vehemently anti-abortion declaration, despite all evidence that the far right is desperately in need of family therapy.

According to Dobson, after a mere two hours of deliberation, presumably including coffee and bathroom breaks, these anonymous leaders were near unanimous in supporting an anti-abortion ultimatum. They agreed to back a spoiler candidate if the Republican (or Democratic) presidential nominee was not sufficiently in conservative lockstep with the far right definition of support for the “sanctity of human life.” Of course, one has to factor in peer or pastor pressure in this vote which had participants standing up in support of the sanctity of human life. Who wants to sit down for choice under the gimlet-eye of one’s values-invoking peers?

The real purpose of the vote was to send a signal to the slew of Republican candidates that they need to step up their far right rhetoric. Tellingly, Dobson notes that the group did not support creating a third party of their own. Such a third party model invokes memories of the defrocked New York State Right to Life Party which literally “put the baby on the ballot” with its fetal logo, but failed to achieve actual electoral success.

Rather, the far right is confronted with a Giuliani, Romney, maybe-Thompson problem: these frontrunners have all shifted gears away from their earlier politically expedient pro-choice positions in a quest for the White House. Now the far-right fears these men are not to be trusted to provide for them the way the Bush administration has. After seven glorious years of far-right spoils -- including an abortion ban, stem cell research blockades, abstinence-only funding windfalls, and a faith-based funding bonanza -- presidential change indeed must be a frightening prospect.

Dobson strongly pronounces that the far-right façade is not cracked. But the gentleman doth protest too much. Numerous recent scandals involving far-right figures, and the death of Moral Majority leader Jerry Falwell, as well as a shift in federal focus to the war, the economy, and family-valued affordable health care, have made the far right’s rigid abortion hymn seem out of touch.

Such single-issue proclamations, which neglect real values issues -- poverty, health care, social justice and the environment to name a few -- give the appearance of conservative uniformity, but ultimately reveal how narrow and extreme these groups really are.

To these conservative leaders’ dramatic yet flimsy election year proclamation, I can only say, spoil away.

A Breastfeeding Balancing Act: When New Mothers Return to Work

2007-09-10T04:01:00Z

In the politicized world of parenting, two things about new motherhood are beyond doubt:

1. Breastfeeding provides important health benefits to babies.

2. Returning to work after having a child is a balancing act for the whole family.

For a woman returning to work who continues to breastfeed her baby, the balancing act can be even trickier, often requiring her to find time to “pump,” that awkward but essential process of expressing breast milk with out the baby’s assistance. A growing number of states are recognizing that employers must be encouraged to reasonably accommodate breastfeeding mothers who are returning to work. Nearly a third of states have laws that provide some level of protection to employees needing to express breast milk during the workday; five states passed such laws this year.

Last month New York joined this trend, granting new workplace rights to breastfeeding mothers. A new law, known as the Expressing at Work Act, requires employers to reasonably accommodate mothers who need to express breast milk in the workplace. This new law will make it easier for nursing mothers in New York to balance work and family responsibilities.

The medical evidence is clear that breast milk provides important health benefits to a baby and so by facilitating increased breastfeeding this new bill will not only protect the rights of working mothers but will improve children’s health. The “expected” family leave time is often only three months – the maximum unpaid leave protection provided by the federal Family and Medical Leave Act and often mirrored in employers’ policies. Yet the medical experts recommend that a child be breastfed at least until age one. More than half of mothers with children under age three work outside the home according to the U.S. Department of Labor.

The number of women who decide to wean their babies before returning to work, or who postpone a return to work altogether to facilitate breastfeeding, is not known. The case of an architect working in an open plan office that had only a single stall bathroom is just one of the many stories we have heard about women deciding that pumping at work would be impossible and so weaning becomes their only option. Women in non-office jobs face even more difficulties finding a private place and adequate cold storage.

A teacher in a small town outside Buffalo, NY, contacted Legal Momentum last year with a situation typical of the difficulties women encounter upon returning to work while continuing to breastfeed. The teacher was forbidden by her principal from using 10 minutes of her class preparation periods to express breast milk or to go to the school’s nearby child care center to nurse her baby. Under New York's Expressing at Work law, this teacher’s employer would now be required to provide her with reasonable, unpaid break time and make an effort to provide a location where she could express breast milk in private. The new law also prevents employers from discriminating against nursing mothers.

Studies show that breastfed babies are healthier, and that parents of a child who is breastfed are less likely to miss work caring for a sick child. Many employers will benefit from more productive workers who need fewer days off to take care of sick children. Research has also shown that when a mother’s efforts to breastfeed are supported at her job, her breast-feeding rates are comparable to that of stay-at-home mothers.

New laws requiring “reasonable accommodation” for expressing milk are a step in the right direction. These laws must include enforcement provisions and should include provisions to ensure that privacy, cold storage, and reasonable break time for pumping are available. More family friendly policies – such as adequate and paid leave time and quality, affordable child care – are also needed to bring about healthy babies, and family balance.

Our Nation’s Top Doctor is a Politician?

2007-08-10T04:01:00Z

Does the Bush administration have more compassion for stem cells than for women? Recent testimony by former Surgeon General Richard Carmona revealed that a host of federal policies affecting women’s health care – from abstinence-only programs, to stem cell research, emergency contraception and abortion – prioritize politics, ideology and theology over women's health.

Dr. Carmona testified before the House Committee on Oversight and Government Reform that spending policies are dictated by “preconceived political agendas” which “fly in the face of good science.” Yet naysayers with their do-good science were ignored, says Carmona, because the administration “did not want to hear the science but wanted to, if you will, ‘preach abstinence’ which I felt was scientifically incorrect.”

The surprising part is just how unsurprising this all is. The funding scheme for abstinence-only programs provides a particularly deplorable example. Despite mountains of evidence clearly showing that these extreme programs are ineffective and harmful, federal funding continues at over $200 million a year and growing. Under the Bush administration, abstinence-only subsidies have gushed forth -- creating a deluge of funding for far-right religious groups, amidst a dearth of federal oversight.

Other Surgeons General agreed and testified that while Dr. Carmona’s experience was extreme, political meddling with the Office of the Surgeon General was by no means exclusive to the Bush Administration. The surprising part is just how unsurprising this all is.

The fact that this administration views public health policy through conservative blinders is not altogether unexpected. The funding scheme for abstinence-only programs provides a particularly deplorable example. Despite mountains of evidence clearly showing that these extreme programs are ineffective and harmful, federal funding continues at over $200 million a year and growing. Under the Bush administration, abstinence-only subsidies have gushed forth -- creating a deluge of funding for far-right religious groups, amidst a dearth of federal oversight. Politics, ideology and theology take priority over women’s health in this administration testified Carmona.

Former Surgeon General David Satcher testified about a similar trend towards politicizing health care during his tenure in the sex-plagued As far back as 2001 he found no scientific evidence that abstinence-only education is effective, and recommended that children instead be given age-appropriate comprehensive sexuality education. However, his report was released only later during the Bush administration, and without the administration’s support. “You know the politics of sex in Secretary of Health and Human Services Tommy Thompson commenting to him.

The Surgeons General likewise faced pressure not to talk about political hot-button health issues such as HIV/AIDS. The administration discouraged Dr. Satcher from releasing a report that supported needle exchange as a way to slow the spread of this deadly disease. During the Reagan era, Surgeon General C. Everett Koop had to resist administration pressure not to talk about HIV/AIDS.

On a lighter note, it’s worth mentioning that poor Dr. Carmona was required to make three positive references to President Bush on every page of every speech he made.

With the office of Surgeon General now empty, the president's nominee Dr. James Holsinger faces Congressional review. Now is the time to ask the hard questions about the role of the nation’s top doctor. Not only is there cause for concern about Dr. Holsinger’s qualifications and his disturbing remarks about homosexuality made years back, but as the recent testimony reveals, the real question is what he, and others, will do to resist the politicization of the nation’s public health policies.

Reforming the Office of Surgeon General is just one important step in the battle to prioritize science in public health care decisions. As several Surgeons Generals’ testimony exposed, the public health cost of federal programs that are based on politics rather than science is too high. It’s time to liberate the Office of the Surgeon General and to prioritize policies that promote health and not ideology.

(Portions of this post appeared in a July 17, 2007 op-ed in The Boston Globe.)

Lilly Ledbetter Should Have Known Better - A Cautionary Tale

2007-07-11T04:01:00Z

Hickory dickory dock, hurry Lilly, there goes the clock.
Said the new Supreme Court majority,
with ultra-conservative authority,
“Lilly, you have just six months to learn,
what pay your male co-workers do earn,
or we will rule your discrimination claim post hoc.”
Tick tock, tick tock, tick tock.

After the recent Supreme Court ruling concerning pay discrimination, perhaps every little girl in the land should be taught this nursery rhyme. Although not as high caliber poetry as Humpty Dumpty, the rhyme warns of the irreparable harm that may result if a woman fails to take legal action the moment she suspects that her paycheck is smaller than that of her male counterparts.

The new blindingly-conservative Supreme Court majority held in Ledbetter v. Goodyear Tire & Rubberthat employees who suspect pay discrimination must now complain within 180 days of the employer’s salary decision, or forever forfeit their right to challenge the subsequent effects on their income. While some states do provide a marginally more realistic 300 days for filing, and will continue to do so, these deadlines are unusually short, and inappropriate. Such requirements ignore the difficulty of discerning pay discrimination in the workplace. Moreover, as Justice Ginsburg describes in her dissent, the Court’s cut-off point ignores the fact that a salary decision “infected” by discrimination continues to plague an employee’s earnings long after the initial discriminatory decision.

Ms. Ledbetter, the only female working as an area manager at Goodyear’s Gadsen, Alabama plant, earned less than all fifteen of the male managers. A jury found that the pay disparity stemmed in large part from discriminatory conduct by her past manager who had believed that Ms. Ledbetter’s rejection of his sexual advances justified lower pay raises for her.

Prior to the Supreme Court’s ruling, challenges to paycheck disparities were governed by the paycheck accrual rule, which recognized that an employer’s initial discriminatory pay decision takes effect again and again with each unfairly low paycheck. As long as an employee filed her claim within the statute of limitations for at least one of these paychecks, her claim was examined as part of an on-going practice of discrimination.

This approach acknowledged that even a small disparity in one paycheck accumulates over the years in to a big difference in earnings. For example, one brief submitted to the Court by women's organizations noted a study showing this cumulative effect. The study projected that a woman whose starting salary was just $5,000 less than a male colleague's would have a lifetime earnings gap of more than half a million dollars -- when interest and differences in retirement benefits and social security are included -- even if the two had received identical percentage raises every year.

But the Supreme Court has now ruled that the clock starts running immediately after the “discrete act” that sets the initial discriminatory pay level. Ledbetter’s claims were rejected as untimely. Tick tock block.

Discovering pay discrimination is difficult. How many of us know even what our best friends are earning -- never mind knowing what our co-workers earn? Moreover, many companies have policies in place that forbid employees from disclosing their salaries, while others simply rely on our own prudishness towards discussing such matters in the lunchroom.

In Lilly Ledbetter’s case, after years of hearing rumors that she was underpaid, she found out what three other male managers earned after a detailed anonymous note was left in her mailbox. As Ledbetter described it to Congress: “It turned out that I ended up getting paid what I did because of the accumulated effect of pay raise decisions over the years. In any given year, the difference wasn’t that big, nothing to make a huge fuss about all by itself.”

Ironically the employer-friendly basis for this opinion will also cause headaches for the boss. The decision encourages employees to shoot first and ask questions later, creating incentives for employees to file charges with the Equal Employment Opportunity Commission the moment they suspect discriminatory motives lie behind a pay decision. The employee who is slow to formally cry discrimination could forever forfeit the right to challenge the initial unfair decision.

The Equal Pay Act of 1963 will continue to offer some (narrower) relief to victims of pay discrimination who fail to meet the Supreme Court’s strict deadlines for Title VII employment discrimination claims. However, an Equal Pay Act violation is far more difficult for an employee to prove and also offers far more limited relief, providing only two to three years of back pay. (Ledbetter did not appeal her Equal Pay Act claim, and is now retired from Goodyear.) Moreover, the Equal Pay Act only covers gender-based claims and offers nothing to those who are victims of discrimination based on race, color, religion, and national origin -- they may only seek relief under the now-weakened Title VII provisions.

Fortunately Congress has the ability to “fix” the Supreme Court’s faulty interpretation of Title VII. To preserve the spirit of the anti-discrimination law, the House has introduced legislation -- coyly named The Lilly Ledbetter Fair Pay Act -- to remedy the situation and ensure that an employee can use evidence of past unequal pay as proof of present day discrimination. The Act restores the protections against unfair pay decisions that Title VII had provided before the new majority took their gavels to it. Pay discrimination claims could be filed within 180 days of the issuance of a discriminatory paycheck. A yet-to-be introduced Senate version would also remove the miserly cap on Title VII damages, making the amount comparable to remedies in other civil rights laws.

Congress has applied such fixes before – for example, enacting the Civil Rights Act of 1991 when the Supreme Court interpreted Title VII too stingily. Now similar repairs are needed, and the clock is running.

Congress Abstains from Spending Sense

2007-06-10T04:01:00Z

Talk about throwing good money after bad. Despite a definitive new study showing that federally funded abstinence-only programs fail, Congress is proposing increases to this year’s abstinence-only spending. Not only do abstinence only programs fail to reduce teen sexual activity, the study shows that they actually impede efforts to prevent sexually transmitted disease.

In the face of this evidence, House Democrats are joining the president in proposing to increase the largest of the federal abstinence-only funding streams, the Community Based Abstinence Education program (CBAE). President Bush had suggested inflating the $200 million plus that we already spend each year for abstinence-only programs, and Democrats in Congress jumped to “obey” in a deal brokered by Congressman David Obey. Already there has been almost 1.5 billion dollars spent on ineffective abstinence-only programs since 1982.

This spending increase is now brought to you by the “new” Democratic leadership in Congress. Same waste, different Congress.

Such blatant disregard for a study that Congress itself mandated and funded is astounding. And, as the latest study confirms, abstinence-only programs are not just wasteful but cause actual harm, particularly placing women’s and girls’ health at risk.

The study, conducted by the non-partisan Mathematica Policy Research, Inc., at the behest of Congress, confirmed that abstinence-only programs are ineffective at reaching their stated goals. Students who participate in these programs are as likely to have sex by age 16 as their peers who did not participate, and they are likely to have had as many partners as those who did not take abstinence-only classes.

Worse still, these programs actually cause harm to young people. The study finds that students who are exposed to abstinence-only programs become less informed about the use of condoms to prevent STDs. Alarmingly, those taking part in abstinence-only programs were more likely to incorrectly believe that “condoms are never effective at preventing STDs,” including HIV and HPV.

In particular women and girls suffer as a result of these programs because they are the ones who get pregnant and who are more biologically vulnerable to the spread of sexually transmitted infections. Being taught to distrust condoms can have deadly consequences – particularly for young women of color, the group with the fastest growing rates of HIV infection.

The next step could not be more clear: we need to pull the plug on funding for abstinence-only programs. Yet Congress is trying to horse trade away this goal; apparently finding it easier to throw money at harmful and ineffective programs than to even talk about talking about sex.

The public health cost of federal programs that fund sexual ignorance is too high. It’s time to start funding policies that promote comprehensive reproductive education essential to protecting girls and women’s health. And it’s time for Congress to start acting like the regime change that this country voted for last year.

A Courtroom is No Place for a Pregnant Woman

2007-05-10T04:01:00Z

The U.S. Supreme Court has instructed women and girls experiencing crisis pregnancies to come to the courtroom. The Court’s recent decision in Gonzales v. Carhart, 127 S.Ct. 1610 (2007), stated that a lawsuit challenging a ban on so-called partial birth abortion should not have been brought by doctors who treat women. Rather, the Court suggested that the challenge could only be brought by a pregnant woman who could prove why she needed the banned procedure to protect her health.

In legal terms, rather than asserting that a statute “on its face” is unconstitutional, it must be challenged “as applied” to an individual woman’s circumstances. There has been considerable, and justified, criticism of the Supreme Court for upholding a ban that fails to protect women’s health. This significant altering of legal mechanisms for enforcing women’s rights is similarly appalling. Justice Ginsburg’s dissenting opinion recognized this as a huge set-back for reproductive rights. She noted that virtually all of the abortion cases reaching the Supreme Court since Roe v. Wade, 410 U.S. 113 (1973), have involved facial attacks on state statutes, and questioned what the majority would now consider a “proper lawsuit.”

Is it proper for a woman in a medical crisis to have to delay treatment so she can get the treatment she needs?

Such trauma by trial is not hypothetical. For the past two weeks in Ireland a 17 year old pregnant girl had been seeking the High Court’s permission to travel to England for an abortion. The teenager, known as “Miss D,” sought to end her pregnancy because at 18 weeks fetal brain development was fatally defective. If born, the baby would not survive more than a few days. Miss D is in the care of a state agency which had alerted law enforcement and passport officials to stop her from leaving the country during her pregnancy.

Abortion is illegal in Ireland except when the continuation of pregnancy poses a real and substantial risk to a pregnant woman's life. A constitutional amendment enacted in 1983 provides an equal right to life to the “unborn” and to the pregnant woman. In practice, England serves as a safety valve by providing safe, legal abortion for more than 5,500 women from Ireland each year.

Separate teams of lawyers represented Miss D, the State, the “unborn,” D’s mother and even her grandmother. The teams combed over her medical records, questioned whether she was suicidal, and debated for days about the state’s right to limit her travel. After more than five days of hearings, the High Court ultimately ruled that the state could not interfere with Miss D’s travel. The Court avoided answering whether she had a right to an abortion in her own country.

Disturbingly, this appears to be part of a trend worldwide in which individual women with crisis pregnancies must go to court rather than to their doctors to protect their health.

Last year the European Court of Human Rights considered the case of another Irish woman who had traveled to England to terminate a pregnancy after a diagnosis of a fatal fetal anomaly of twins, one of which had already died in utero. The European Court declined to address whether Ireland’s abortion ban violated this woman’s rights under the European Convention on Human Rights. The Court dismissed her case on technical grounds, insisting that in order to vindicate her rights domestically she should have gone to court and urged a change in Irish constitutional law, all while the clock ran on her pregnancy. Not surprisingly she had chosen to travel abroad instead.

The courtroom is an improper place for a woman in a crisis situation and often claims are brought only after a woman has suffered harm. Last year, for example, the United Nations Human Rights Committee recognized that a 17 year old Peruvian girl had been subjected to cruel and degrading treatment when she was forced to carry a fatally impaired fetus to term and then breastfeed the infant until its death four days later. This year, in Tysiac v. Poland, a Polish woman was awarded damages by the European Court of Human Rights after being denied access to an abortion despite the risk to her eyesight from continuing pregnancy. She subsequently became legally blind and unable to care for her four children. In both instances the courts’ rulings were based on the government’s failure to provide clear regulations in advance and facilitate the women’s access to necessary abortion services.

Such stories of individual women seeking abortions demonstrate why the abortion decision is made best by women, and not by judges or politicians. They vividly exemplify the need to ensure that abortion is legal and available for women worldwide before the moment when immediate abortion services are needed to preserve a woman’s health.

Adding insult to injury is that women are forced to go to court even when seeking to abort a fetus that has not reached the point of viability. The U.S. Supreme Court was not concerned whether the “partial birth abortion” ban applied to a non-viable fetus. Likewise, in Ireland the lawyer appointed to represent Miss D’s fatally ill fetus asserted that fetal viability was irrelevant, arguing that the court should disregard the quality or duration of the life of the fetus. It is shocking when abortion opponents, including judges, are willing to prioritize a non-viable or a dying fetus above a woman’s health and well-being.

The Supreme Court acknowledges that the abortion ban it approved will not stop a woman from obtaining an abortion. The ban needlessly puts a woman’s health at risk by forcing her to either undergo a riskier alternative procedure or spend days in court arguing her case. Where is the state’s interest in that?

Fighting the Backlash Against HPV Vaccination

2007-04-11T04:01:00Z

Here’s how to derail one of the best advances in women’s healthcare in years: take one aggressive drug-company effort, add a stealth campaign by far-right organizations who equate sexual safety with promiscuity, and throw in a dash of scare tactics by those who oppose all vaccination. Voila, a backlash strong enough to derail a safe and effective vaccine against the virus that leads to cervical cancer.

Nationwide, legislation requiring vaccination against human papilloma virus (HPV) is quietly being put on ice now. Meanwhile over six million Americans will get a new case of the virus this year, 10,000 women will get cervical cancer, and more than 3,500 women will die from cervical cancer.

Clouds of inappropriate lobbying by the vaccine’s maker should not obscure the fact that mandatory vaccination itself remains innocent, and imperative.

Vaccination must be made mandatory or it will never be widespread. Historically the only way that the government and private insurers cover the costs of vaccination and ensure public education is when vaccination is required to attend school. Requiring the vaccine also will ensure that young women get the vaccine when it is most effective – well before their first exposure to HPV.

Parental rights arguments are no more than a red herring that far-right groups have successfully used to distract parents. Chastised when they initially opposed the vaccine by arguing that safer sex promotes promiscuity, far right groups are now mischaracterizing the vaccine as an attack on parents’ rights. They deliberately disregard the opt-out provisions forty-eight states already allow for religious reasons. Eighteen states also allow philosophical, personal or conscientious belief exemptions.

These opt-out provisions are vital. Certainly all states should have opt-out provisions and many could be better designed. Mandatory vaccination legislation provides an opportunity to include such revisions where needed.

In alliance with groups who oppose all vaccines, far right groups have successfully belittled HPV by portraying the virus as not-so-contagious since it is spread by sexual contact rather than through a sneeze. Yet young people ages 15 to 24 comprise almost half of those infected with HPV. Encouraging a false sense of security about the spread of the disease is an extreme disservice to parents, and endangers their children’s health.

A vaccine that forces us to talk about the reality of teen sexuality is always going to be an uphill battle. Yet more than 70% of young women do have sex by the time they are 19 years old. Faced with this reality, parental reaction should be to vaccinate; better safe than sorry. Purity and pap smears alone will not protect from the potentially deadly virus.

If we lose this chance to make the vaccine mandatory we will be denying vital protection to the women who need it most. Informed parents with resources will still learn about and access the vaccine for their children. It is those in poverty, predominantly minority groups, who will continue to experience disproportionately high rates of HPV and cervical cancer.

Let’s stop the backlash and not throw out a good vaccine with some bad bathwater.

Hooking-Up Hysteria

2007-03-11T05:01:00Z

Here it comes, the latest hysteria over teen sex. The newest firestorm is about whether young adults, particularly young women, are “hooking up” too often. This latest panic is spurred by several new books with hooking up in their titles. The ensuing media frenzy – girls gone wild! -- uses new lingo to revive the same old fear that girls are giving away the milk rather than making the boys buy the cow.

“Hooking up” may not involve sex at all. The expression refers to any sexual conduct --from holding hands to “going all the way.” According to Laura Sessions Stepp, author of the new back-lashing book Unhooked: How Young Women Pursue Sex, Delay Love and Lose at Both, none of these activities should take place outside of a truly committed relationship. Be warned: young women who hook up will likely end up damaged and, gasp, unmarried.

Session Stepp despairs over the fact that today’s “busy girls” fail to prioritize “romance” over sports, studying and careers. Bring on the same tired stereotypes: women want marriage; men just want sex. “Give” them the sex and you won’t get the ring.

Once again we are embracing inflammatory rhetoric while shunning a real discussion of young people and sex. Like the alarm over supposed “rainbow parties” – that old urban myth about oral sex as a competitive sport among teens keeping score with lipstick -- this latest panic about teen sexuality causes its own harm, particularly to young women. Hooking up hysteria simply puts a contemporary twist on old ways of chastising young women for “putting out.” Boys are cleared of any wrongdoing because they are still stereotyped as just naturally wanting sex and not relationships.

But love, relationships, and sex are far more complicated than these traditional stereotypes. Continuing to deny that girls and young women have any sexual feelings provides them no protection from the risks of sexual activity, and makes positive sexual experience all the more unobtainable. Painting all boys and men as simply lascivious ignores their desire for relationships and commitment.

Moreover, there are real problems with sex on campus that we should be spending time talking about: the effects of binge drinking and drug use, lack of consent and ambiguous consent, high rates of sexually transmitted infections and unplanned pregnancies, to name just a few.

Yet the U.S. continues to deny adolescents and young adults even the most basic sexuality education, and continues to have one of the highest rates of teen pregnancy among industrialized nations. Our national policy promoting abstinence-only education precludes giving even basic contraceptive information to teens and instead simply labels all sexual activity outside of marriage as harmful and morally wrong.

Instead of teen sex hysteria, we need to promote comprehensive reproductive education that honestly discusses the risks and benefits of “hooking up” or not.