Supreme Court Justice Ruth Bader Ginsburg has become a cultural icon, inspiring internet memes, popular biographies, documentaries, and a new feature film called On the Basis of Sex. This week, we reflect on her impact on the ACLU, where she founded the Women’s Rights Project in 1972. We’re joined by...
www.aclu.org/genderjustice. And that will enable people to participate in activism, to get these laws passed, and take other measures to push for equality in their states as well as at the federal level.</p>
<p>EMERSON<br />
Fantastic. Thank you very much, Lenora Lapidus. We really appreciate you coming on the podcast.</p>
<p>LENORA<br />
Thank you very much for having me. It was a pleasure.</p>
<p>EMERSON<br />
Thanks very much for listening. Be sure to subscribe to the podcast, rate us, and tweet @ACLU with feedback. We appreciate your input and we'll be sure to read every message. Till next week. Peace.</p>
<p>EMERSON SYKES<br />
[00:05] From the ACLU, this is At Liberty. I'm Emerson Sykes, a staff attorney here at the ACLU, and your host. It seems like Supreme Court Justice Ruth Bader Ginsburg is on everyone's mind recently. She's become a cultural icon, inspiring Internet memes, biographies, documentaries, and a new feature film, On the Basis of Sex, and at the time of this taping, she's recovering from what her doctors called a successful surgery. But today we wanted to take the opportunity to reflect on Ruth Bader Ginsburg’s impact on the ACLU, where she founded the Women's Rights Project. We have with us in studio Lenora Lapidus, the current director of the Women's Rights Project who's worked for the ACLU fighting for gender equality since 2001. Lenora, it's a great pleasure and honor to have you with us. Welcome to the podcast. </p>
<p>LENORA LAPIDUS<br />
Thanks so much. It's great to be here.</p>
<p>EMERSON<br />
Can you start by telling us a bit about the founding of the ACLU’s Women's Rights Project and the role of Ruth Bader Ginsburg?</p>
<p>LENORA<br />
Sure. The Women's Rights Project was founded by Ruth Bader Ginsburg in 1972. The prior year she had written a brief on behalf of the ACLU in a case called Reed v. Reed. This was the case in which, for the very first time, the U.S. Supreme Court held that the 14th Amendment Equal Protection Clause prohibited sex discrimination just as it prohibited discrimination on the basis of race. That case challenged an Idaho law that said if a mother and father both wanted to be the administrator for a child's estate after the child passed away, the court automatically would grant the father this right because he was a man. </p>
<p>[1:55] And Ruth Bader Ginsburg challenged this law, arguing that there could not be a preference on the basis of sex for no other reason, and that men should not automatically be preferred over women. And the Supreme Court agreed and struck down the Idaho law, finding that it violated equal protection on the basis of sex. So following the Supreme Court's decision in Reed v. Reed, the ACLU board decided that women's rights would be the organization's top priority and they created the Women's Rights Project to litigate sex discrimination cases. And they hired Ruth Bader Ginsburg to lead that project. She did so until 1980 when she was appointed to be a judge on the D.C. Circuit Court of Appeals. And during that decade of the 1970s she brought case after case to the Supreme Court establishing the constitutional basis for prohibiting sex discrimination.</p>
<p>EMERSON<br />
Why did the ACLU Board decide to prioritize women's rights at that time? </p>
<p>LENORA<br />
This was of course the beginning of the 1970s, when the women's rights movement was really kicking into full gear and there was a lot of activism around women's rights. But there wasn't yet really litigation challenging the host of sex discriminatory laws that existed. So, the board decided that, as Ruth Bader Ginsburg had written in this brief in Reed v. Reed, that we could start a project here really focused on challenging all of these laws that discriminated on the basis of sex.</p>
<p>EMERSON<br />
In the movie, On the Basis of Sex, it centers around a case called Moritz versus Commissioner of the Internal Revenue Service, and one of the interesting features of that case was that it was actually a male plaintiff that was used to argue that sex discrimination was unconstitutional. And as I understand it, that was actually not unique to that case — where there was a male plaintiff used to argue for gender equality. Can you talk a little bit about the risks of that type of approach?</p>
<p>LENORA<br />
[4:10] So a few answers. First of all, yes, Moritz was actually the very first case in which Ruth Bader Ginsburg wrote a brief arguing that the 14th Amendment prohibited sex discrimination.</p>
<p>EMERSON<br />
This is the 14th Amendment which provides that everyone is equally protected by the Constitution.</p>
<p>LENORA<br />
That's correct. The Equal Protection Clause of the 14th Amendment was the provision that she was bringing these cases under. So, in Moritz, she first laid out her theory that just as the Equal Protection Clause prohibited at the time race discrimination, so, too, should it be read to prohibit sex discrimination. Because of the way the cases work their way up through the courts, Reed v. Reed got to the Supreme Court before Moritz did.</p>
<p>So she actually took much of the brief that she had written in Moritz and used that for the brief in Reed v. Reed. But Moritz involved a statute that provided if someone was taking care of an elderly parent, they could get a tax deduction for hiring someone to provide some of that care while they had to go out and work. However, that only applied if the person taking care of the elderly parent was either a daughter or a daughter-in-law, not if it was an unmarried son. So Mr. Moritz thought this was very unfair and challenged it, and Ruth Bader Ginsburg learned about the case and she and her husband Marty Ginsburg, who was a tax expert, decided that they would represent him. And they did, and it got only to the Court of Appeals where they prevailed.</p>
<p>[6:02] But then, of course, Reed versus Reed came in between at the Supreme Court level. So Moritz never went up to the Supreme Court. </p>
<p>This notion of representing men to challenge sex discrimination was in fact something that Ginsburg did throughout her time at the ACLU Women's Rights Project. She represented men in a number of different cases on the theory that sex discrimination harms men as well as women because in both instances, it forces people into particular gender roles. One of Ginsburg's favorite cases was a case she brought to the Supreme Court in 1975. That case was Weinberger v. Weisenfeld.</p>
<p>And in that case, it was the she argued on behalf of Steven Weisenfeld, who was a father whose wife had died in childbirth, and he was unable to stay home and take care of his newborn son because Social Security regulations provided that survivor's benefits were only available for mothers whose husbands had died not, for fathers whose wives had died. And again, Ginsburg brought this case to the Supreme Court, arguing that that was sex discrimination and the court ruled in favor of Steven Weisenfeld. </p>
<p>EMERSON<br />
So is that kind of strategy still in use today — to take plaintiffs that are representing the flip side of the issue that is at the core of the question?</p>
<p>LENORA<br />
Yeah, actually. We have a case right now against JP Morgan Chase. And JP Morgan Chase provides 16 weeks paid parental leave for mothers who have just given birth but only two weeks for fathers who have just had a child.</p>
<p>[7:54] There is perhaps some discrepancy for immediately after childbirth when a woman who's just given birth needs to recover from giving birth. However, after that time the parental leave is really providing bonding time for a parent to bond with their new child. And so we believe that that should be provided equally to mothers and fathers.</p>
<p>The case brought on behalf of a father here is not only beneficial to men who want to spend time with their children, but also it begins to break down the gender stereotypes that caretaking for a newborn is really women's work, and that winds up harming women in the workforce because then employers feel like it's more of a burden to have women. They won't hire them. They won't promote them. So really using men as plaintiffs in these cases benefits both men and women.</p>
<p>EMERSON<br />
One of the scenes that really stuck with me from the movie was when Ruth Bader Ginsburg describes a list that's been compiled of the hundreds of laws that discriminate on the basis of sex and calls them a hit list. And it's sort of portrayed that the ACLU Women's Rights Project is going to make this list their working document for their agenda over the next several years. And I wonder, as the current head of the Women's Rights Project, how much progress has been made on that list? </p>
<p>LENORA<br />
Yeah. So one of the great things that happened in the Moritz case was that the government attached an appendix to its brief that listed these thousands of laws that all differentiated on the basis of sex and treated people differently just simply based on whether they were women or men. During the 1970s, this was in fact the list that provided many of the cases that Ginsburg and her colleagues here at the ACLU brought to the Supreme Court and they were successful in striking down law after law that differentiated on the basis of sex. </p>
<p>[10:02] By the end of the 70s, most of the federal laws — which were what they were challenging, for the most part — most of those laws that differentiated on the basis of sex were declared unconstitutional. And so in many ways, the most explicit sex discrimination was taken care of and those laws were struck down. However, many of the same issues that Ginsburg and her colleagues were challenging still exist. So for example, a huge priority of of Ginsburg's was these gender roles, and particularly gender roles in the family. </p>
<p>We still see, for example, huge problems with pregnancy discrimination. That's one of the top priorities of the ACLU Women's Rights Project today, where employers refuse to provide accommodations for pregnant workers. For example, we have several cases on behalf of police officers. They're fully capable of continuing to do their jobs, but for the final few months of their pregnancy, request desk duty rather than going out on patrol. And even though police departments will provide desk duty to officers for a whole host of reasons, if the reason is because the officer is pregnant then the police departments are unwilling to do so. That, of course, violates the Pregnancy Discrimination Act which is part of Title VII, which prohibits employment discrimination. But nevertheless, many employers still do treat pregnant workers differently from other workers in the workplace.</p>
<p>EMERSON<br />
That's really interesting. I think in the current context, there's a lot of debate publicly about gender roles within the family and also in the workplace.</p>
<p>[11:55] You can think about all of the different recent developments in terms of the so-called pink wave in the midterm elections, the #metoo movement. But the role of gender in our society is being sort of reconsidered in a very deep way. So I'm wondering how you and the Women's Rights Project see yourselves positioned within the current context and how it's affecting your priority issues.</p>
<p>LENORA<br />
All of that has had a huge impact on our work and on the ACLU overall. Many of the ACLU’s new members — the majority — are women, and in large part they are activated by this same frustration with the role of women that continues today. So in the wake of the #metoo movement, we started getting many more calls from workers who were complaining about sexual harassment, and just recently we joined forces with some other attorneys who are representing workers at McDonald's. And this is a nationwide effort on behalf of low wage workers who work at McDonald's restaurants all over the country and are subject to sexual harassment where there are really very few policies in place to prevent and remedy sexual harassment when it occurs.</p>
<p>EMERSON<br />
Working within a multi-issue organization like the ACLU, sometimes the values that we hold dear are in tension. The example of sexual assault and sexual harassment comes to mind, where you and your team have been doing amazing work to make sure that there’s recourse available to women who have suffered this sort of mistreatment. While at the same time, we also are committed to making sure that there are protections in place for people who are accused of misconduct. This is particularly acute in the criminal context, when we know that our criminal justice system is rife with bias and racism and an overemphasis on incarceration. When these types of tensions arise, how do you negotiate these important questions?</p>
<p>LENORA<br />
[13:54] Yeah, I think the fact that the ACLU is a multi-issue organization gives us some added expertise that we can bring to many of these debates. For example, even in just the workplace-sexual-harassment context, we care very much about the victims of sexual harassment. We also care very much about fair process for who's ever accused. And so we are able to bring to those discussions this dual expertise and I think that is really helpful. </p>
<p>On the criminal justice side, I will say that one of the issues we also care very much about in the Women's Rights Project is women who are caught up in the criminal justice system, and that is sometimes overlooked. And folks think about criminal justice as mostly being about men, and that is really not true. Women, in fact, are the fastest growing population of the criminal justice system. </p>
<p>EMERSON<br />
What kinds of issues around women's incarceration are you taking up at the moment?</p>
<p>LENORA<br />
Well, we've been working with our Human Rights Program recently looking at Oklahoma, which has the highest rate of female incarceration, and the ways in which women who are charged with crimes and often put in jail even before going through trial and being convicted of a crime, but are pre-trial awaiting a determination.</p>
<p>The majority of women who are incarcerated were the primary caregiver before their incarceration. So when a woman is incarcerated, the issues are not only about her and her rights, but what is going to happen to the children who she was responsible for. And that's a huge problem in Oklahoma. So our Human Rights Program recently published a report looking at mothers who are incarcerated and the ways in which the criminal justice system, and the pre-trial system, in particular, really has these huge ripple effects on women and their families.</p>
<p>EMERSON<br />
[16:00] Taking maybe a step or two backwards, looking at the kinds of cases that the Women's Rights Project and other projects within the ACLU are working on now and comparing them to the types of cases that Ruth Bader Ginsburg and others brought earlier on in the Women's Rights Project...</p>
<p>LENORA<br />
Some of the issues are very similar, issues around parenting and workplace equality.</p>
<p>So the pregnancy discrimination work that we're doing, the paid family leave work that we're doing — some of those are very much the same issues of gender stereotypes. And just on that, I'll tell you a quick story. When I first started as director of the Women's Rights Project, I went and met with Justice Ginsburg in her chambers and I said to her, “You know we've obviously made a lot of progress. You did a tremendous amount during the 1970s while you were at the ACLU. What do you think are the remaining issues that are still most critical today?” And this was, you know, almost 20 years ago I had this conversation with her. She said at the time, “I think we made a lot of progress in getting women into the workforce but we've made far less progress getting men to be able to play an equal role in the family.”</p>
<p>And when I began, that was one of my major goals, was to try to change both workplaces and cultural norms so that men could play more of an equal role in the family. We are still fighting that fight now again, almost 20 years later. </p>
<p>Some issues that we're working on now were not part of the docket at all. So a large part of our work is around gender-based violence. And that was really not seen in the 1970s as a civil rights issue. And in my time here, beginning in the 2000s, we've really tried to raise that issue more and look at all the ways in which institutions today really perpetuate gender-based violence. </p>
<p>[18:06] So for example, in the housing context, there are laws in many cities around the country called “nuisance ordinances,” and what they say is if the police are called to a home more than, say, three times, the landlord must evict. And the landlord must evict all members of the household — so the perpetrator of the violence as well as the victim of the violence. </p>
<p>And that really puts victims of domestic violence in a terrible situation. They either can call the police to get help and protect them from the violence, but if they do so, they know that they are risking being evicted and they and their children may become homeless. We have been challenging those ordinances all across the country and also working to get states to enact legislation that would prohibit local cities from passing such ordinances. And we've been having good success but there are still many more to challenge.</p>
<p>EMERSON<br />
I wonder if you could just highlight maybe two or three cases over the time that you've been at Women's Rights Project that you're most proud of.</p>
<p>LENORA<br />
Well, I'll begin with a current case which I think really shows sort of the 21st century form of sex discrimination. And this is a case that we brought against Facebook for its algorithms and digital platforms enabling employers to discriminate in posting job advertisements. So we sued both Facebook and ten employers who used Facebook to post job advertisements and target those only to men. And these are in historically traditionally male fields and they were looking for men. Now discriminating in job advertisement in job advertising has been illegal for decades. </p>
<p>[20:10] The Supreme Court struck that down and said the New York Times could not have jobs, you know men only, women only. And now we see in the 21st century that's exactly what Facebook is enabling employers to do by selecting to whom these ads will be targeted. </p>
<p>EMERSON<br />
And what's the status of that case?</p>
<p>LENORA<br />
We are in settlement negotiations now.</p>
<p>EMERSON<br />
Okay. So Facebook is number one. Can you give us another of the greatest hits?</p>
<p>LENORA<br />
Well, one of the cases that I worked on is also sort of a 21st century issue. This was a challenge to Myriad Genetics’ testing of the BRCA gene. The BRCA gene is associated with breast and ovarian cancer, and mutations on the gene can indicate whether or not someone is at greater risk of developing breast or ovarian cancer. Myriad Genetics does testing and they obtained a patent on the BRCA gene. Now, they didn't get a patent on the form of testing. They didn't get a patent on some analysis that they did. They actually got a patent on the gene itself. That gene exists in every single person's body. </p>
<p>EMERSON<br />
Male and female? </p>
<p>LENORA<br />
Male and female, all across the world, everybody has this gene. Not everybody has a mutation on the gene. But Myriad Genetics got a patent on the gene itself which meant that no one other than Myriad Genetics could do testing to see if there were mutations. So we represented a number of scientists and researchers, as well as some women who had breast cancer as well as some organizations that represented people with breast cancer. And the case went all the way up to the Supreme Court, and we won in a 9-0 decision, which is very rare. </p>
<p>EMERSON<br />
[22:12] Congratulations. </p>
<p>LENORA<br />
And basically, the court held that no private company can have a patent on a human gene. It is part of the human body, it is part of our human lineage. And a company cannot get a patent on that.</p>
<p>EMERSON<br />
So no other genes are allowed to be patented after that.</p>
<p>LENORA<br />
No genes can be patented. </p>
<p>EMERSON<br />
What was the gender-based argument in that case?</p>
<p>LENORA<br />
Well, we got into the case because of the breast cancer and ovarian cancer angle. By Myriad Genetics holding a patent on the gene and prohibiting any other companies from testing for mutations, it meant that the cost of genetic testing was far higher than it would be otherwise. And it meant that people, primarily women — but not only women because men, in fact, can get breast cancer, as well — but primarily women would be denied the testing and the information that they needed. </p>
<p>EMERSON<br />
Well, I wanted to go back just for a moment. You mentioned sort of offhandedly that you've met with Justice Ginsburg. What do you make of her sort of late in life status as a cultural icon? I mean she's been a legal pioneer, an important lawyer and judge for decades. But it's only recently that her likeness is on onesies and tote bags and everything else that you can imagine that can be branded. And what do you make of this, why now? Does the hype match the person that you've come to know?</p>
<p>LENORA<br />
Well, she's been a hero, or a shero, of mine forever, so I'm thrilled that the rest of the world has come around and now sees just what an amazing person she is.</p>
<p>[23:59] I think that it is part of this sort of revival of feminist activism and also people of younger generations saying that really, time's up. You know we should have come much farther than we have since the 1970s when Ruth Bader Ginsburg was litigating these cases. And so I think celebrating her now is also part of the demand for change.</p>
<p>EMERSON<br />
I'm interested to hear sort of your origin story and how you came to this work as well.</p>
<p>LENORA<br />
Well, I guess women's rights have always been a driving force for me. My mother was active in the 1970s in what was then called Women's Lib. And my mother had her Ph.D., was a professor during my childhood. My father was also a Ph.D. and professor. And people would call on the telephone and say, “Hello, may I speak with Dr. Lapidus?” And my favorite thing as a little kid would be to say, “Which one?”</p>
<p>But I was always very proud of her.</p>
<p>But also saw... I mean, I remember she tried to get a credit card in her own name and wasn't able to and it was ridiculous. She was in an equal position to my father. They were both earning equal salaries, approximately. In fact, she taught at Columbia, so probably earned a little more than he did. And yet, she couldn't get a credit card because she was a woman. So I saw her as a successful, career-oriented woman, but still facing sex discrimination. And she was also, as I said, very active in the feminist movement. So in college, I was a Women's Studies minor, along with my major. And worked at Radcliffe for two years between college and law school, went to law school to do women's rights work.</p>
<p>[26:00] The first summer — the summer after my first year of law school — I was an intern at the Women's Rights Project. And little did I know, 12 years later I'd be back as the director. But so that's always sort of been my goal and I'm just thrilled that I've been able to actually live the life I was dreaming of living.</p>
<p>EMERSON<br />
I wonder if we can just finish up by thinking about the future, both within your project and maybe a little bit about the country more broadly. As we said, we're in a very interesting moment, to say the least, for better or for worse. And I wonder where you think the question of gender equality and women's rights is going over the next few years?</p>
<p>LENORA<br />
We still have a lot of work to do.</p>
<p>We have obviously made a lot of progress, but we are still far from equal. If you look at all positions of power, whether it's in government or running businesses, women still are not equal in those positions. I think this last election was fantastic in the number of women who, first of all, ran for, but then also were elected to Congress and to positions throughout the states.</p>
<p>So I find that very encouraging. But you know, we have a president right now who constantly demonstrates his disdain for women and women's equality, among many other groups for whom he also demonstrates disdain. So I think we still have a long way to go. </p>
<p>I'm encouraged that, here at the ACLU, the Women's Rights Project is growing, which I think is great because that will help advance our efforts. We are working in several states to pass laws for equal pay, paid family leave, and pregnancy accommodations.</p>
<p>[27:57] And we've developed a great website that activists can go to. It's just <a href=https://www.aclu.org/podcast/page/"http://www.aclu.org/genderjustice">www.aclu.org/genderjustice. And that will enable people to participate in activism, to get these laws passed, and take other measures to push for equality in their states as well as at the federal level.</p>
<p>EMERSON<br />
Fantastic. Thank you very much, Lenora Lapidus. We really appreciate you coming on the podcast.</p>
<p>LENORA<br />
Thank you very much for having me. It was a pleasure.</p>
<p>EMERSON<br />
Thanks very much for listening. Be sure to subscribe to the podcast, rate us, and tweet @ACLU with feedback. We appreciate your input and we'll be sure to read every message. Till next week. Peace.</p>
"
outline-white-buttons="true"
>
Supreme Court Justice Ruth Bader Ginsburg has become a cultural icon, inspiring internet memes, popular biographies, documentaries, and a new feature film called On the Basis of Sex. This week, we reflect on her impact...
www.aclu.org/genderjustice. And that will enable people to participate in activism, to get these laws passed, and take other measures to push for equality in their states as well as at the federal level.</p>
<p>EMERSON<br />
Fantastic. Thank you very much, Lenora Lapidus. We really appreciate you coming on the podcast.</p>
<p>LENORA<br />
Thank you very much for having me. It was a pleasure.</p>
<p>EMERSON<br />
Thanks very much for listening. Be sure to subscribe to the podcast, rate us, and tweet @ACLU with feedback. We appreciate your input and we'll be sure to read every message. Till next week. Peace.</p>
<p>EMERSON SYKES<br />
[00:05] From the ACLU, this is At Liberty. I'm Emerson Sykes, a staff attorney here at the ACLU, and your host. It seems like Supreme Court Justice Ruth Bader Ginsburg is on everyone's mind recently. She's become a cultural icon, inspiring Internet memes, biographies, documentaries, and a new feature film, On the Basis of Sex, and at the time of this taping, she's recovering from what her doctors called a successful surgery. But today we wanted to take the opportunity to reflect on Ruth Bader Ginsburg’s impact on the ACLU, where she founded the Women's Rights Project. We have with us in studio Lenora Lapidus, the current director of the Women's Rights Project who's worked for the ACLU fighting for gender equality since 2001. Lenora, it's a great pleasure and honor to have you with us. Welcome to the podcast. </p>
<p>LENORA LAPIDUS<br />
Thanks so much. It's great to be here.</p>
<p>EMERSON<br />
Can you start by telling us a bit about the founding of the ACLU’s Women's Rights Project and the role of Ruth Bader Ginsburg?</p>
<p>LENORA<br />
Sure. The Women's Rights Project was founded by Ruth Bader Ginsburg in 1972. The prior year she had written a brief on behalf of the ACLU in a case called Reed v. Reed. This was the case in which, for the very first time, the U.S. Supreme Court held that the 14th Amendment Equal Protection Clause prohibited sex discrimination just as it prohibited discrimination on the basis of race. That case challenged an Idaho law that said if a mother and father both wanted to be the administrator for a child's estate after the child passed away, the court automatically would grant the father this right because he was a man. </p>
<p>[1:55] And Ruth Bader Ginsburg challenged this law, arguing that there could not be a preference on the basis of sex for no other reason, and that men should not automatically be preferred over women. And the Supreme Court agreed and struck down the Idaho law, finding that it violated equal protection on the basis of sex. So following the Supreme Court's decision in Reed v. Reed, the ACLU board decided that women's rights would be the organization's top priority and they created the Women's Rights Project to litigate sex discrimination cases. And they hired Ruth Bader Ginsburg to lead that project. She did so until 1980 when she was appointed to be a judge on the D.C. Circuit Court of Appeals. And during that decade of the 1970s she brought case after case to the Supreme Court establishing the constitutional basis for prohibiting sex discrimination.</p>
<p>EMERSON<br />
Why did the ACLU Board decide to prioritize women's rights at that time? </p>
<p>LENORA<br />
This was of course the beginning of the 1970s, when the women's rights movement was really kicking into full gear and there was a lot of activism around women's rights. But there wasn't yet really litigation challenging the host of sex discriminatory laws that existed. So, the board decided that, as Ruth Bader Ginsburg had written in this brief in Reed v. Reed, that we could start a project here really focused on challenging all of these laws that discriminated on the basis of sex.</p>
<p>EMERSON<br />
In the movie, On the Basis of Sex, it centers around a case called Moritz versus Commissioner of the Internal Revenue Service, and one of the interesting features of that case was that it was actually a male plaintiff that was used to argue that sex discrimination was unconstitutional. And as I understand it, that was actually not unique to that case — where there was a male plaintiff used to argue for gender equality. Can you talk a little bit about the risks of that type of approach?</p>
<p>LENORA<br />
[4:10] So a few answers. First of all, yes, Moritz was actually the very first case in which Ruth Bader Ginsburg wrote a brief arguing that the 14th Amendment prohibited sex discrimination.</p>
<p>EMERSON<br />
This is the 14th Amendment which provides that everyone is equally protected by the Constitution.</p>
<p>LENORA<br />
That's correct. The Equal Protection Clause of the 14th Amendment was the provision that she was bringing these cases under. So, in Moritz, she first laid out her theory that just as the Equal Protection Clause prohibited at the time race discrimination, so, too, should it be read to prohibit sex discrimination. Because of the way the cases work their way up through the courts, Reed v. Reed got to the Supreme Court before Moritz did.</p>
<p>So she actually took much of the brief that she had written in Moritz and used that for the brief in Reed v. Reed. But Moritz involved a statute that provided if someone was taking care of an elderly parent, they could get a tax deduction for hiring someone to provide some of that care while they had to go out and work. However, that only applied if the person taking care of the elderly parent was either a daughter or a daughter-in-law, not if it was an unmarried son. So Mr. Moritz thought this was very unfair and challenged it, and Ruth Bader Ginsburg learned about the case and she and her husband Marty Ginsburg, who was a tax expert, decided that they would represent him. And they did, and it got only to the Court of Appeals where they prevailed.</p>
<p>[6:02] But then, of course, Reed versus Reed came in between at the Supreme Court level. So Moritz never went up to the Supreme Court. </p>
<p>This notion of representing men to challenge sex discrimination was in fact something that Ginsburg did throughout her time at the ACLU Women's Rights Project. She represented men in a number of different cases on the theory that sex discrimination harms men as well as women because in both instances, it forces people into particular gender roles. One of Ginsburg's favorite cases was a case she brought to the Supreme Court in 1975. That case was Weinberger v. Weisenfeld.</p>
<p>And in that case, it was the she argued on behalf of Steven Weisenfeld, who was a father whose wife had died in childbirth, and he was unable to stay home and take care of his newborn son because Social Security regulations provided that survivor's benefits were only available for mothers whose husbands had died not, for fathers whose wives had died. And again, Ginsburg brought this case to the Supreme Court, arguing that that was sex discrimination and the court ruled in favor of Steven Weisenfeld. </p>
<p>EMERSON<br />
So is that kind of strategy still in use today — to take plaintiffs that are representing the flip side of the issue that is at the core of the question?</p>
<p>LENORA<br />
Yeah, actually. We have a case right now against JP Morgan Chase. And JP Morgan Chase provides 16 weeks paid parental leave for mothers who have just given birth but only two weeks for fathers who have just had a child.</p>
<p>[7:54] There is perhaps some discrepancy for immediately after childbirth when a woman who's just given birth needs to recover from giving birth. However, after that time the parental leave is really providing bonding time for a parent to bond with their new child. And so we believe that that should be provided equally to mothers and fathers.</p>
<p>The case brought on behalf of a father here is not only beneficial to men who want to spend time with their children, but also it begins to break down the gender stereotypes that caretaking for a newborn is really women's work, and that winds up harming women in the workforce because then employers feel like it's more of a burden to have women. They won't hire them. They won't promote them. So really using men as plaintiffs in these cases benefits both men and women.</p>
<p>EMERSON<br />
One of the scenes that really stuck with me from the movie was when Ruth Bader Ginsburg describes a list that's been compiled of the hundreds of laws that discriminate on the basis of sex and calls them a hit list. And it's sort of portrayed that the ACLU Women's Rights Project is going to make this list their working document for their agenda over the next several years. And I wonder, as the current head of the Women's Rights Project, how much progress has been made on that list? </p>
<p>LENORA<br />
Yeah. So one of the great things that happened in the Moritz case was that the government attached an appendix to its brief that listed these thousands of laws that all differentiated on the basis of sex and treated people differently just simply based on whether they were women or men. During the 1970s, this was in fact the list that provided many of the cases that Ginsburg and her colleagues here at the ACLU brought to the Supreme Court and they were successful in striking down law after law that differentiated on the basis of sex. </p>
<p>[10:02] By the end of the 70s, most of the federal laws — which were what they were challenging, for the most part — most of those laws that differentiated on the basis of sex were declared unconstitutional. And so in many ways, the most explicit sex discrimination was taken care of and those laws were struck down. However, many of the same issues that Ginsburg and her colleagues were challenging still exist. So for example, a huge priority of of Ginsburg's was these gender roles, and particularly gender roles in the family. </p>
<p>We still see, for example, huge problems with pregnancy discrimination. That's one of the top priorities of the ACLU Women's Rights Project today, where employers refuse to provide accommodations for pregnant workers. For example, we have several cases on behalf of police officers. They're fully capable of continuing to do their jobs, but for the final few months of their pregnancy, request desk duty rather than going out on patrol. And even though police departments will provide desk duty to officers for a whole host of reasons, if the reason is because the officer is pregnant then the police departments are unwilling to do so. That, of course, violates the Pregnancy Discrimination Act which is part of Title VII, which prohibits employment discrimination. But nevertheless, many employers still do treat pregnant workers differently from other workers in the workplace.</p>
<p>EMERSON<br />
That's really interesting. I think in the current context, there's a lot of debate publicly about gender roles within the family and also in the workplace.</p>
<p>[11:55] You can think about all of the different recent developments in terms of the so-called pink wave in the midterm elections, the #metoo movement. But the role of gender in our society is being sort of reconsidered in a very deep way. So I'm wondering how you and the Women's Rights Project see yourselves positioned within the current context and how it's affecting your priority issues.</p>
<p>LENORA<br />
All of that has had a huge impact on our work and on the ACLU overall. Many of the ACLU’s new members — the majority — are women, and in large part they are activated by this same frustration with the role of women that continues today. So in the wake of the #metoo movement, we started getting many more calls from workers who were complaining about sexual harassment, and just recently we joined forces with some other attorneys who are representing workers at McDonald's. And this is a nationwide effort on behalf of low wage workers who work at McDonald's restaurants all over the country and are subject to sexual harassment where there are really very few policies in place to prevent and remedy sexual harassment when it occurs.</p>
<p>EMERSON<br />
Working within a multi-issue organization like the ACLU, sometimes the values that we hold dear are in tension. The example of sexual assault and sexual harassment comes to mind, where you and your team have been doing amazing work to make sure that there’s recourse available to women who have suffered this sort of mistreatment. While at the same time, we also are committed to making sure that there are protections in place for people who are accused of misconduct. This is particularly acute in the criminal context, when we know that our criminal justice system is rife with bias and racism and an overemphasis on incarceration. When these types of tensions arise, how do you negotiate these important questions?</p>
<p>LENORA<br />
[13:54] Yeah, I think the fact that the ACLU is a multi-issue organization gives us some added expertise that we can bring to many of these debates. For example, even in just the workplace-sexual-harassment context, we care very much about the victims of sexual harassment. We also care very much about fair process for who's ever accused. And so we are able to bring to those discussions this dual expertise and I think that is really helpful. </p>
<p>On the criminal justice side, I will say that one of the issues we also care very much about in the Women's Rights Project is women who are caught up in the criminal justice system, and that is sometimes overlooked. And folks think about criminal justice as mostly being about men, and that is really not true. Women, in fact, are the fastest growing population of the criminal justice system. </p>
<p>EMERSON<br />
What kinds of issues around women's incarceration are you taking up at the moment?</p>
<p>LENORA<br />
Well, we've been working with our Human Rights Program recently looking at Oklahoma, which has the highest rate of female incarceration, and the ways in which women who are charged with crimes and often put in jail even before going through trial and being convicted of a crime, but are pre-trial awaiting a determination.</p>
<p>The majority of women who are incarcerated were the primary caregiver before their incarceration. So when a woman is incarcerated, the issues are not only about her and her rights, but what is going to happen to the children who she was responsible for. And that's a huge problem in Oklahoma. So our Human Rights Program recently published a report looking at mothers who are incarcerated and the ways in which the criminal justice system, and the pre-trial system, in particular, really has these huge ripple effects on women and their families.</p>
<p>EMERSON<br />
[16:00] Taking maybe a step or two backwards, looking at the kinds of cases that the Women's Rights Project and other projects within the ACLU are working on now and comparing them to the types of cases that Ruth Bader Ginsburg and others brought earlier on in the Women's Rights Project...</p>
<p>LENORA<br />
Some of the issues are very similar, issues around parenting and workplace equality.</p>
<p>So the pregnancy discrimination work that we're doing, the paid family leave work that we're doing — some of those are very much the same issues of gender stereotypes. And just on that, I'll tell you a quick story. When I first started as director of the Women's Rights Project, I went and met with Justice Ginsburg in her chambers and I said to her, “You know we've obviously made a lot of progress. You did a tremendous amount during the 1970s while you were at the ACLU. What do you think are the remaining issues that are still most critical today?” And this was, you know, almost 20 years ago I had this conversation with her. She said at the time, “I think we made a lot of progress in getting women into the workforce but we've made far less progress getting men to be able to play an equal role in the family.”</p>
<p>And when I began, that was one of my major goals, was to try to change both workplaces and cultural norms so that men could play more of an equal role in the family. We are still fighting that fight now again, almost 20 years later. </p>
<p>Some issues that we're working on now were not part of the docket at all. So a large part of our work is around gender-based violence. And that was really not seen in the 1970s as a civil rights issue. And in my time here, beginning in the 2000s, we've really tried to raise that issue more and look at all the ways in which institutions today really perpetuate gender-based violence. </p>
<p>[18:06] So for example, in the housing context, there are laws in many cities around the country called “nuisance ordinances,” and what they say is if the police are called to a home more than, say, three times, the landlord must evict. And the landlord must evict all members of the household — so the perpetrator of the violence as well as the victim of the violence. </p>
<p>And that really puts victims of domestic violence in a terrible situation. They either can call the police to get help and protect them from the violence, but if they do so, they know that they are risking being evicted and they and their children may become homeless. We have been challenging those ordinances all across the country and also working to get states to enact legislation that would prohibit local cities from passing such ordinances. And we've been having good success but there are still many more to challenge.</p>
<p>EMERSON<br />
I wonder if you could just highlight maybe two or three cases over the time that you've been at Women's Rights Project that you're most proud of.</p>
<p>LENORA<br />
Well, I'll begin with a current case which I think really shows sort of the 21st century form of sex discrimination. And this is a case that we brought against Facebook for its algorithms and digital platforms enabling employers to discriminate in posting job advertisements. So we sued both Facebook and ten employers who used Facebook to post job advertisements and target those only to men. And these are in historically traditionally male fields and they were looking for men. Now discriminating in job advertisement in job advertising has been illegal for decades. </p>
<p>[20:10] The Supreme Court struck that down and said the New York Times could not have jobs, you know men only, women only. And now we see in the 21st century that's exactly what Facebook is enabling employers to do by selecting to whom these ads will be targeted. </p>
<p>EMERSON<br />
And what's the status of that case?</p>
<p>LENORA<br />
We are in settlement negotiations now.</p>
<p>EMERSON<br />
Okay. So Facebook is number one. Can you give us another of the greatest hits?</p>
<p>LENORA<br />
Well, one of the cases that I worked on is also sort of a 21st century issue. This was a challenge to Myriad Genetics’ testing of the BRCA gene. The BRCA gene is associated with breast and ovarian cancer, and mutations on the gene can indicate whether or not someone is at greater risk of developing breast or ovarian cancer. Myriad Genetics does testing and they obtained a patent on the BRCA gene. Now, they didn't get a patent on the form of testing. They didn't get a patent on some analysis that they did. They actually got a patent on the gene itself. That gene exists in every single person's body. </p>
<p>EMERSON<br />
Male and female? </p>
<p>LENORA<br />
Male and female, all across the world, everybody has this gene. Not everybody has a mutation on the gene. But Myriad Genetics got a patent on the gene itself which meant that no one other than Myriad Genetics could do testing to see if there were mutations. So we represented a number of scientists and researchers, as well as some women who had breast cancer as well as some organizations that represented people with breast cancer. And the case went all the way up to the Supreme Court, and we won in a 9-0 decision, which is very rare. </p>
<p>EMERSON<br />
[22:12] Congratulations. </p>
<p>LENORA<br />
And basically, the court held that no private company can have a patent on a human gene. It is part of the human body, it is part of our human lineage. And a company cannot get a patent on that.</p>
<p>EMERSON<br />
So no other genes are allowed to be patented after that.</p>
<p>LENORA<br />
No genes can be patented. </p>
<p>EMERSON<br />
What was the gender-based argument in that case?</p>
<p>LENORA<br />
Well, we got into the case because of the breast cancer and ovarian cancer angle. By Myriad Genetics holding a patent on the gene and prohibiting any other companies from testing for mutations, it meant that the cost of genetic testing was far higher than it would be otherwise. And it meant that people, primarily women — but not only women because men, in fact, can get breast cancer, as well — but primarily women would be denied the testing and the information that they needed. </p>
<p>EMERSON<br />
Well, I wanted to go back just for a moment. You mentioned sort of offhandedly that you've met with Justice Ginsburg. What do you make of her sort of late in life status as a cultural icon? I mean she's been a legal pioneer, an important lawyer and judge for decades. But it's only recently that her likeness is on onesies and tote bags and everything else that you can imagine that can be branded. And what do you make of this, why now? Does the hype match the person that you've come to know?</p>
<p>LENORA<br />
Well, she's been a hero, or a shero, of mine forever, so I'm thrilled that the rest of the world has come around and now sees just what an amazing person she is.</p>
<p>[23:59] I think that it is part of this sort of revival of feminist activism and also people of younger generations saying that really, time's up. You know we should have come much farther than we have since the 1970s when Ruth Bader Ginsburg was litigating these cases. And so I think celebrating her now is also part of the demand for change.</p>
<p>EMERSON<br />
I'm interested to hear sort of your origin story and how you came to this work as well.</p>
<p>LENORA<br />
Well, I guess women's rights have always been a driving force for me. My mother was active in the 1970s in what was then called Women's Lib. And my mother had her Ph.D., was a professor during my childhood. My father was also a Ph.D. and professor. And people would call on the telephone and say, “Hello, may I speak with Dr. Lapidus?” And my favorite thing as a little kid would be to say, “Which one?”</p>
<p>But I was always very proud of her.</p>
<p>But also saw... I mean, I remember she tried to get a credit card in her own name and wasn't able to and it was ridiculous. She was in an equal position to my father. They were both earning equal salaries, approximately. In fact, she taught at Columbia, so probably earned a little more than he did. And yet, she couldn't get a credit card because she was a woman. So I saw her as a successful, career-oriented woman, but still facing sex discrimination. And she was also, as I said, very active in the feminist movement. So in college, I was a Women's Studies minor, along with my major. And worked at Radcliffe for two years between college and law school, went to law school to do women's rights work.</p>
<p>[26:00] The first summer — the summer after my first year of law school — I was an intern at the Women's Rights Project. And little did I know, 12 years later I'd be back as the director. But so that's always sort of been my goal and I'm just thrilled that I've been able to actually live the life I was dreaming of living.</p>
<p>EMERSON<br />
I wonder if we can just finish up by thinking about the future, both within your project and maybe a little bit about the country more broadly. As we said, we're in a very interesting moment, to say the least, for better or for worse. And I wonder where you think the question of gender equality and women's rights is going over the next few years?</p>
<p>LENORA<br />
We still have a lot of work to do.</p>
<p>We have obviously made a lot of progress, but we are still far from equal. If you look at all positions of power, whether it's in government or running businesses, women still are not equal in those positions. I think this last election was fantastic in the number of women who, first of all, ran for, but then also were elected to Congress and to positions throughout the states.</p>
<p>So I find that very encouraging. But you know, we have a president right now who constantly demonstrates his disdain for women and women's equality, among many other groups for whom he also demonstrates disdain. So I think we still have a long way to go. </p>
<p>I'm encouraged that, here at the ACLU, the Women's Rights Project is growing, which I think is great because that will help advance our efforts. We are working in several states to pass laws for equal pay, paid family leave, and pregnancy accommodations.</p>
<p>[27:57] And we've developed a great website that activists can go to. It's just <a href=https://www.aclu.org/podcast/page/"http://www.aclu.org/genderjustice">www.aclu.org/genderjustice. And that will enable people to participate in activism, to get these laws passed, and take other measures to push for equality in their states as well as at the federal level.</p>
<p>EMERSON<br />
Fantastic. Thank you very much, Lenora Lapidus. We really appreciate you coming on the podcast.</p>
<p>LENORA<br />
Thank you very much for having me. It was a pleasure.</p>
<p>EMERSON<br />
Thanks very much for listening. Be sure to subscribe to the podcast, rate us, and tweet @ACLU with feedback. We appreciate your input and we'll be sure to read every message. Till next week. Peace.</p>
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