WOMEN'S BAR ASSOCIATION

25th ANNIVERSARY GALA

Keynote - Judge Nancy Gertner, U.S.D.C.

October 29, 2003

 

THE MYTH OF RETURN - A NEW FEMININE MYSTIQUE

 

It is a great honor to be here at the 25th anniversary of the Women's Bar Association. And

while I am older than that, in many ways we -- this organization -- many in the audience – this woman's movement -- have grown up together.

 

I have been writing a book about this transformation, and my small role in it. Needless to

say, I have archives and archives of materials. Names, notes, and what's more, silly pictures. All in my "Sexist Tidbits" file.

 

Consider the following:

 

There is the picture of me with the "perfect flip" in high school, a hair style preserved by

sleeping on rollers night after night. My mother always told me it hurts to be beautiful. At this age, it is well nigh killing me.

 

There are the cheerleader pictures -- yes cheerleader pictures -- because there was no

Title IX guaranteeing girls' participation in any other sport -- and to those of us with perfect flips, cheerleading was a sport.

 

There is the hygiene class at Barnard College, mandatory for freshmen girls. The main

thing we were taught -- or at least, all I remember -- was how to get in and out of cabs without anyone looking up our skirt.

 

But the teacher made one mistake. She gave us Betty Friedan's "Feminine Mystique" to

read. Betty Friedan talked about the "problem with no name." She identified the problem of women, strangely dissatisfied with their lives because of the myth -- the mystique -- of domesticity on which they had been raised. She described the mystique as the false belief system that "required [women] to find their identity and meaning through their husbands and their children." And I was transformed. Now, I wanted to be president of the United States. So I studied the life of Abe Lincoln -- law school, then lawyer, then the senate, then president. (Problem is, I have been stuck in phase 1).

 

A few years after reading Friedan, after law school, I jettisoned "the flip" for the flower

child look, hair down my back, mini skirts, and a shopping bag.(I did not believe in briefcases since briefcases were symbols of elitism, separating you from your client.) I was quite a scene in court.

 

The Women's Bar Association was formed by women like me -- although better dressed.

We wanted more than just a place to meet other women, have tea, even network. We were raw with the reactions to our presence that we encountered in the profession. We were desperate for something more than cocktail parties, more than cheerleading. We needed action.

 

My stories -- in sexist tidbits -- were emblematic. I had applied for a clerkship in the

chambers of Chief Judge Luther Swygert of the Seventh Circuit Court of Appeals in Chicago. Judge Swygert, whom I grew to love, asked me almost immediately if I planned to marry and have children. I had three responses: One was to say something to him -- preferably dirty – and  entirely inappropriate. The other was to do something violent to him -- also dirty -- and entirely inappropriate. The third was to say "no, I would never marry and have children." In fact, I wasn't so certain what my future would bring, whether I wanted to hearth and home at all.

 

Fast forward fifteen years later. Judge Swygert has turned 80 and he asked me -- of all his

clerks -- to speak at his birthday celebration. I brought John Reinstein, now my husband, but then my date. I went to the front of the assembled group, turned to the judge, got down on my hands and knees and said: "Judge Swygert, fifteen years ago I promised you that I would never marry and have children. I am now 39, barren,-- release me from the pledge!"

 

He guffawed. In fact, he had changed long before. He had set aside space in his library for a law clerk to nurse her child in private. He understood feminism's lesson. It wasn't about choosing work or family; it was about transforming both. It wasn't just about choice; it was about equality.

 

WBA was filled with people who wanted an activist organization, one that would work

for social change, file legislation, offer speakers, write amicus briefs.

 

Make no mistake, about it. This organization was interested not just in being like men,

achieving what men had achieved, but in doing what Judge Swygert did -- transforming work and home. And, these were revolutionary ideas.

 

I knew I had found a home.

 

The first amicus brief the WBA wrote was about choice -- the right to choose abortion.

But it was more than that. The case was Moe v. Secretary of Finance and Administration. It was a challenge to the prohibition on funding abortions under Medicaid, even when those abortions were medically necessary. The stories were gripping: The woman with cancer who needed chemotherapy, that would endanger the fetus. The woman with heart problems whose body could not sustain the rigors of pregnancy etc..

 

It was argued by two young lawyers, with the support of so many others. I was one. My

husband John Reinstein was another, the other. I searched for videos from that time but to show you how we looked, how earnest our presentation was. I couldn't find any so I have to be content to give you their names of the people who participated in that effort, all of whom we have specially invited here today: Marjorie Heins, Katherine Triantafillou representing the plaintiffs, Terry Jean Seligman, Margot Botsford, Suzanne Howard for the Women's Bar Association. Other groups such as The Boston Women's Health Book Collective, Planned Parenthood, submitted amicus briefs. And the litigation was sponsored by the Women's Rights Project of the ACLU -- which included Judge Eileen Shaevel, and Judge Sandra Lynch.

 

It was 1979, seven years after Roe v. Wade seemed to have settled the issue -- the right to

choose abortion could not be made criminal. But in the intervening years legislation around the country, including in Massachusetts, heaped on restriction after restriction. Some were serious, some were laughable. My personal favorite was a proposed resolution decrying the declining birth rate. Then there was a bill that announced that "males are the naturally dominant force in the family and should have the deciding say in family controversies." Funny as it was, these bills recognized the implications of the women's movement – that it had the potential to reorganize work and family.

 

There were the more serious legislative proposals, that no public hospital could do

abortions, no state-funded insurance plans would be allowed to cover abortions, elaborate

informed consent proposals, proposals restricting minor's access to abortion, and on and on. In one year alone 30 bills were filed. The attack was clear. Abortion was a right, a choice, if you will, but not one that the state would pay for. Women with money could have ready access to abortions. Poor women could not. While Roe v. Wade announced that everyone had a right to an abortion, unless the government paid for and supported the right, it was for many women, an empty shell. It was like the old adage from Anatole France: "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread." Choice, in short, was not everything unless it was meaningful choice.

 

On June 13, 1979, Governor Edward J. King, sporting a red rose, signed into law a bill

that forbad the use of state or any other public funds for abortions, even for victims of rape or incest. My husband John and I were in federal court the next day, moving to enjoin its implementation. The Massachusetts case was one of many across the country. We moved for a preliminary injunction in district court. Denied. We appealed and moved for an injunction pending appeal. Allowed. Then the appeal lost, and we applied for certiorari to the Supreme Court, and moved to stay the mandate pending that determination. Allowed. Then cert was denied, and we moved for reconsideration, which continued the injunction. Then reconsideration was denied, and McRae v. Harris, a case raising the same challenge was decided in NY favorably to our position. The government agreed to continuing the injunction. Then the Supreme Court decided Harris v.

McRae -- a surprise decision in the opposite direction -- sustaining the elimination of funding for abortion. We had kept the balls in the air for years -- the law had never been implemented – but we were at the end of the line in federal court.

 

We turned to state court. The Massachusetts Constitution predated the federal

constitution. The Supreme Judicial Court had shown itself willing to part company with the U.S. Supreme Court, to interpret its provisions in ways that differed from the U.S. Supreme Court. When the Supreme Court declared discrimination against pregnant women was not sex discrimination, the Massachusetts high court disagreed. When the Supreme Court affirmed the death penalty, the SJC refused to follow suit. And the SJC developed a body of law on the right to privacy, especially with respect to medical decisions.

 

Most significant of all was the fact that, notwithstanding the failure of the federal efforts,

this state had its own Equal Rights Amendment. Here we would make the central argument. It was gender discrimination to carve out a woman's operation when you covered male specific ones, and all others.

 

To be sure, the decision to use the ERA was controversial even among feminist lawyers. At a cocktail party we were told that the head of NOW wanted to talk to us. She told us that we ought not link abortion to the ERA; it would endanger the ERA movement.

 

But John and I were adamant. We had clients to represent. We said: If the ERA did not

cover this, it was not worth it.

 

Then, in a ringing 6-1 decision, the Court held that there was a right to choose abortion

under the Massachusetts constitution, part of a broad right to privacy –. Further, the Court

announced what the US Supreme Court would not, that in order for that choice to be a

meaningful one, the government had to fund medically necessary abortions. The Court did not address the ERA claim, but we were content. Medicaid funding for abortion was never lost, not for a single moment, in this state.

 

But I did not agree to give this speech to congratulate you. Far from it.

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When I was a lawyer, I was known for giving fiery speeches, controversial, even strident.

In fact, the hardest part of my confirmation process was not the cases I had brought as a lawyer, the articles I had written, but the volume of speeches I had given – on Boston Common.

 

But judges are supposed to be dispassionate, even passion-less. There are two speeches

that are safe for a judge. I could tell you about an old case, the older the better, and you can draw your own conclusions about its significance. That way I don't have to wade into nasty issues and dirty my hands with current events. Or I could spend my time figuratively patting everyone on the back, congratulating us all on how far we have come -- x number of women judges, lawyers, partners. Nothing controversial. Nothing troubling.

 

The problem is I can't give you such a speech. I don't believe it. It is not that there is

nothing to congratulate ourselves about. There is much to be proud of. I have had the

opportunity to travel around the world, most recently in China. We have so much more than the women elsewhere. I can say "Congratulations on Moe v. Secretary of Finance!"

"Congratulations on the women in the judiciary, the women in law firms, in the law schools, the women who are deans" and then I can sit down.

 

 

I can't give that speech. The problem is that there is so much left to do, and there are

signs that we are going backward. First, there was the anecdotal evidence:

 

I have been writing a book about my career, and the battles we fought. I was told that my

stories, while very interesting, would not appeal to young women lawyers. Those battles, my editors told me, are over. Young women don't have to fight them any longer. The issues of my generation are simply not compelling issues.

 

And in the class I teach at Yale Law School, I learned that women were just opting out of

the rat race -- both in law school and thereafter. If the class was unpleasant, because of the attitudes of the professors or male students, they just chose to remain silent, while we would protest, or petition, or picket. And after law school, according to the Dean, women between the ages of 25- 35 disappeared from the alumnae rolls. Most "chose" to stay home with their children, expecting to return to work later.

 

And then I had lunch with a young woman who had just graduated law school. Her father, a partner in a Boston law firm, wanted me to meet with her and give her career advice. So I told her: "Start your own firm! Do women's rights or civil rights work! Use your skills to continue the battles." She was unmoved. "That was then," she said. "This is now." There are no more battles to fight.

 

Then I read this Sunday's New York Times Magazine, which gave me more material,

beyond the anecdotes. The headline was: "Why Don't More Women Get to the Top? A. They Chose Not To?"

 

They chose not to? Let's read it carefully:

 

One woman interviewed graduated in 1992. She worked in publishing until her first child, and after her second, quit: Women today, she reported, "if we think about feminism at all, we see it as a battle fought for 'the choice.' For us the freedom to choose work if we want to work is the feminist strain in our lives."

 

So that's it, it is about choice – being a mother, or a worker. My son Peter said the same

thing., when I described my concerns to him. "What difference does it make mom," he said. "If they want to leave work and choose to be full time parents, what's wrong with that? "

 

At first glance, it sounds wonderful -- to be with one's children, live a more human life. And I understand that choice -- the pull of motherhood is extremely strong. I had children when I was 39, when menopause and birth were neck and neck. I ached for them all the time.

 

But read further; it is more complicated. These women are not talking about pure choice,

if there is such a thing. They talk about social expectations, even social pressures channeling them

in one direction. Motherhood, after all, was the identity they could have a fall back on. Their tolerance for the burdens of the workplace was lower than men for whom opting to be a parent was just not possible. The author notes -- "maybe they have higher standards for job satisfaction because there is always the option of being their child's primary care giver. The men have to stick it out."

 

And apart from social pressures or expectations, that workplace was less than comfortable.  They left at the first sign of trouble. They left because they did not feel welcome.

 

One woman concedes that "seeking clout in a male world does not correlate with child

well-being. " Sounds like -- inadequate day care to me. Employers who, unlike Judge Swygert, would not welcome their nursing in the library.

 

It's not that women aren't competitive, the women assured the NY Times. It's just that they don't want to compete along the lines that are not compatible with their other goals. In short, they left because the work place was not transformed, because the family was not transformed.

 

So it was more than the idyllic pull of motherhood on the one hand; it was the push of real obstacles in the workplace on the other.

 

The woman's movement was about more than choice. It was about transformation—

changing the lines between public private spheres, releasing the potential for change in each, and transforming public citizenship. It was not about being the same as men, about letting rich and poor sleep under the bridge. It was about revolutionizing the workplace, with support services for families, with altered expectations for both men and women.

 

Indeed, by the time you finish the NYT article, you wonder how different these women are from my mother, from the women Betty Friedan wrote about. In Friedan's days, it may have been more difficult to succeed at work if you were a woman, even if you remained unmarried and childless, but it still could be done. If you wanted to behave like a man, there were options even then. Since my mother wanted children, she believed she had no choice. It was "either/or." In the Friedan generation, women were pulled into motherhood, and repelled from the workplace at the same time. Betty Friedan argued that women were choosing marriage to avoid fears about their own identity and the fear and uncertainty that comes with going against role. Isn't the pattern reported in the NYT the same thing?

 

No, the women interviewed by the NYT report: "Talk to any professional woman who

made this choice and this is what she will say. She is not her mother or her grandmother. She has made a temporary decision for just a few years, not a permanent decision for the rest of [her] life." "Not a 1950s Stepford wife," or a character out of Sylvia Plath's Bell Jar, or a woman from Friedan's Feminine mystique." "My degree is my insurance policy," one insisted. She believed that she could come back. to the workplace when her children grew up.

So, add the "myth [or mystique] of return" to the pull of motherhood, and the push of the

workplace. It is not at all clear what women like these will be able to go back to. Why should the workplace be any more welcoming when they are 35 than it was when they were 25?

 

And so the article asks": "If that workplace can reabsorb those who left into a career they

find fulfilling, then stepping out may in fact be the answer to the frustrations of this generation. If not, then their ability to balance life and work will be no different than their mothers' after all." Again, have we replaced the feminine mystique, with the myth of return.

 

Is this, the article queries, the failure of a revolution or the start of a new one? On the side

of the failure of a revolution: A standard excuse for not hiring women as law professors, or deans, or judges, was that there were not enough senior women. If we don't stop this trend, that excuse will be true. Ten years from now the ranks of senior women will in fact thin out, fewer and fewer will be ready to assume positions of leadership in the profession.

 

On the side of a new revolution: The NYTimes reports that the number of married men

who are full time care givers to their children increased 18 percent; 46 percent of the employees taking parental leave were men.

 

I don't know which it will be. Sadly, our movement has a history of taking one step forward, and two steps back.

 

Still I feel lucky and privileged in my own life. I went from the flower child with the long

hair and shopping bag, to a judge of this wonderful federal court. I went from determined to be single because I feared that I could not combine work and family, to being privileged to marry John and have three wonderful children. My to do lists are "research entrapment, pick up the peanut butter."

 

And in our Court, the women judges have made a difference. I recall one patent case in

which the lawyers, all male, were seated at their tables in front of me. A senior partner, who obviously had the relationship with the client. was seated at one of the tables, but not really taking part in the litigation. Every time he wished to send a message to the lawyers, he would turn to the audience, wave at a young woman in the back row, hand her a note for her to deliver to the male lawyer who was only a matter of inches in front of him. Finally, I couldn't take it any more. I announced to him and the other lawyers that I was prepared to move the furniture in any way they wanted so that he would be able to deliver his own notes to his male colleagues.

 

And then there was the Court policy on snow days. . . Before Judge Patti Saris and I

joined the Court the policy was that whenever it snowed each judge would ask his courtroom deputy -- largely women -- to come to court at five in the morning and wait for further instructions. Then the judge would determine if he would open the court that day. Judge Saris and I said that this was ridiculous. If the Boston Schools are closed, all courts should be closed. Even if the parents can somehow make it in, their children would be left behind.

 

And then there was the toilet episode. I was sitting in my office, behind a large desk,

dressed like a professional. A young cleaning woman came up to me with plastic bags on her hands. She asked me if I would tie the bags around each hand. I said sure but added "why do want to tie bags around your hands?" She said: "They didn't give us gloves to clean the toilet today. What do you use to clean the toilets?" So I told her, and then I said, "but you know, I don't clean the toilets here. I'm a judge." "You're a judge?" She asked, incredulous. Yes I am! I can't imagine one of my male colleagues being asked what they use on the toilets – or that they would have an answer.

 

Twenty-five years ago they told us it was nature. Women could not be lawyers or judges

because of biology. Now they tell us it is choice –– because women choose to give up work. It is neither, it is both. I will be able to choose when the choices are not loaded, when I feel welcome everywhere, when I am supported and not discriminated against, when there is meaningful day care, when law firms respect the child care responsibilities of all its members, when men take family leave and stay home. In short, when the revolutionary potential of the movement is fulfilled.

 

So what do we do? We have to create new laws, new paradigms. The civil rights laws of

the 60s have been effectively overruled. Women have these rights but somehow no one can prove they were violated in a given case. One technical exception pivots on another -- -- the concept of stray remarks, the endless formalistic rules.

 

I challenge you to create a Commission that will not just count the numbers, and congratulate us but ask why women are leaving, and when, why there are fewer women litigators in federal court, and not just study but propose. Work on what we need to do now to make the workplace safe for mothers and fathers.

 

Happy Birthday Women's Bar Association! Let the next 25 years be not only about choice, but finally, hopefully and at long, long last -- about equality.