Attacking trans athletes doesn't protect women and girls in sports. Here are three things that do.

As a woman who played Division I basketball in South Carolina, I have seen the power of non-discrimination protections under Title IX. As a civil rights advocate fighting for gender equity in sports, I have excitedly watched our courts and more sports organizations move towards extending those same essential protections to transgender athletes. 

However, conservative politicians are now targeting transgender athletes in state legislatures and stoking transphobia in their opposition to the federal Equality Act. They have done so under the guise of protecting “fairness and equality for women” in sports, touting baseless scientific claims that trans women and girls have an unfair physiological and biological advantage over their cisgender counterparts.  But the assertion that transgender athletes’ participation harms women’s sports is simply not true. Moreover, anti-trans bills that aim to exclude trans women and girls from teams that match their gender identity are actually harmful to all women and girl athletes. Research suggests that policing athletes’ gender or sexual orientation negatively impacts sports participation among all young girls. 

Not only are lawmakers engaged in a dangerous, calculated, and strategic attempt to weaponize transphobia for political gain, but they are actually creating the very problem they claim to be preventing. 

We can and should do better by our women and girls in athletics. There are real threats to their ability to play and excel, including unequal treatment, lack of access to sports, lack of investment, and a shortage of women leaders. 

Here are 3 evidence-based actions for policymakers and advocates to support and uplift women and girls in sports. 

1. Fully enforce Title IX.   

Despite the advances in women’s athletics that we have seen under Title IX, the law is still not fully enforced. Consequently, major disparities in sports opportunities still persist at both the high school and collegiate level. For example, in high school, boys have approximately 1.13 million more opportunities to compete than girls. Girls of color are disproportionately left out. At NCAA schools, women make up half of the student population but they only receive 44 percent of the athletic participation opportunities.

There are also glaring disparities in the treatment of women athletes as evidenced by the recent March Madness incident. The women had access to a small pyramid of dumbbells and a small stack of yoga mats, while their counterparts competing in the NCAA men’s tournament were given a massive room of weightlifting equipment. The women also received pre-packaged food (the men were offered giant platters to choose from) and less accurate COVID testing options. The list goes on. 

To date, no school has ever lost Title IX funding for violating Title IX athletic protections. By fully enforcing these protections and holding schools accountable for major disparities in their sports programs, we can protect and expand access to sports for women and girls.  

2. Invest in women’s sports. 

If you want something to thrive, you invest in it. Too often, however, sports entities across the board fail to adequately invest in women’s sports. In collegiate sports, women receive millions less actual athletic scholarship assistance. Further, of the $282 million spent on NCAA recruiting, only 30 percent was spent to attract women talent. Pay gaps at the professional level persist. Media visibility is bleak (Women make up 40 percent of sports participants but only 4 percent of sports media coverage). 

Too few opportunities, coupled with a lack of investment, create barriers for women to thrive in athletics. Financial constraints frequently prevent them from purchasing equipment, training, traveling, and or paying tournament fees. Teams do not exist in many places and aspiring athletes often lack access to venues or a safe and reliable method of transportation. 

Advocates can help support women and girls by demanding more financial investments in women’s and girls’ sports. This means calling for more opportunities, equal treatment, equitable pay, safe facilities, and more media coverage. These are the types of investments women and girls need and have been requesting for years. 

3. Hire more women in leadership positions.

Simply put, there is a dire lack of women in sports leadership. In a recent hiring report card for processional sports that tracks women in leadership positions, the National Football League (NFL) and Major League Baseball (MLB) both received “C” grades. Major League Soccer (MLS) received a “C-.” Even the NBA, often considered to be the most inclusive big sports league, only received a “B.” Women are also underrepresented in the collegiate leadership space, especially in coaching. Women account for only 40 percent of women’s team coaches and a startling 3 percent of men’s teams

Representation is everything, and the lack of women in sports in top positions is a disservice to all women and girl athletes who want to feel empowered and included. It signals to them that they can only go so far in their journey—that there isn’t room for them at the top. Having women leaders in sports positively impacts girls’ participation in athletics. 

Just as we pushed for girl athletes to receive equal treatment in sports under Title IX, there must be a concerted effort to increase the presence and visibility of women in sports leadership positions. 

We can achieve fairness and equality in women’s sports without using the political system as a weapon to attack transgender girls who just want the same opportunities to play as every other child. We just have to look past transphobic attacks and start addressing the real challenges that prevent all women and girls from thriving in athletics. 

Ashland Johnson is the President and Founder of the Inclusion Playbook, a sports impact project that works with sports leaders to transform communities in and through sports. Ashland is a former Board member of the American Constitution Society.

On Women’s History Month

As a feminist and proud ACS leader on a white, Christian, conservative campus, it is an honor to be asked to write this blog post. But it also made me extremely self-conscious to reflect on the theme that seems to run through those identifiers: resistance. Who would I be if I had nothing to fight against?

Laura Mulvey coined the term the male gaze in the 1970s to define the traditional, male cinematic point of view. The spectator, particularly in classic Hollywood cinema, is put in a masculine subject position, and the women on screen are always the objects. Even female spectators subconsciously internalize that perspective. The worlds we see and the stories we enjoy are from the perspective of men.

So too were all of the major systems in which we exist today. They were established by and for white men, including the legal system. There would not be a Women’s History Month in a nonpatriarchal society and Justice Amy Coney Barret would not have “replaced” Justice Ruth Bader Ginsburg. Similarly, there would not be a Black History Month in a non-white supremacist society and Justice Clarence Thomas would not have “replaced” Justice Thurgood Marshall.

We cannot realistically (for now at least) change the fact that the U.S. Constitution, system of government, and legal framework were created and dominated by white men. What we can do, like Laura Mulvey did for the film industry, is, at the very least, identify and label that reality so that we can reevaluate and change the status quo, hopefully a little freer from its influences. Mulvey called for a feminist avant-garde filmmaking that would destroy the pleasure of classic Hollywood filmmaking. In Visual Pleasure and Narrative Cinema, Mulvey wrote, “Analyzing pleasure or beauty annihilates. That is the intention.” We cannot be afraid of a little discomfort for the sake of a more expansive perspective, and, naturally following that, more freedom and justice.

In regards to Women’s History Month, expansion involves acknowledging and celebrating the entirety of women and the gamut of the female experience. We can resist objectification by embracing and respecting intersectionality. We can annihilate a little more of the status quo by acknowledging complicity and ignorance. We can move towards freedom through progressivism. Only a living constitution can protect and serve the rights of our explosively diverse citizens and their interests. Women’s History Month for me means looking at how much of my ambition and drive comes from resisting male institutions and exploring the implications of that.

You might be surprised to learn that Women’s History Month was established by President Ronald Reagan via proclamation in 1987 at the direction of Congress. The irony of this origin might be as physically repugnant to you as it is to me. As a direct result of Reagan’s War on Drugs, women, especially Black and Latina women, have been the fastest growing prison population for the past 30 years. The United States accounts for one third of the world’s female prison population. But at least we have March!

The women that are traditionally offered to us as role models have, for the most part, been able to skillfully navigate and succeed in this male-created framework. For example, Justice Ruth Bader Ginsburg, who has been a personal hero of mine for years, was famously able to attend Harvard Law School for both herself and her ill husband, come out at the top of her class, and raise a family. Among the words that she left us are: “Fight for the things that you care about, but do it in a way that will lead others to join you.” “Disagree without being disagreeable.” Admittedly, I have not been entirely successful in following these directives. In fact, I naturally resist against these somewhat patriarchal ideas that, to make an impact, women must be agreeable and palatable. Disagreeable to whom? Lead others to what? How can I fight effectively without compromising my values to assuage the powers that be? Isn’t that very compromise part of what we’re fighting against?

Some feminist heroes have succeeded using Justice Ginsburg’s model, but countless others have changed the course of history through more aggressive challenges and resistance. We must also learn about these other womxn, because they, too, have paved the way for us. Like Rev. Dr. Pauli Murray, who is sometimes remembered during this month but too often forgotten the rest of the year. Murray, decades before Justice Ginsburg, fought against the systems built to exclude Black, queer, transgender women. They worked to dismantle segregation both personally and systemically by organizing sit-ins and  creating arguments for its demise that would eventually be successfully deployed by their professor. They resisted misogyny at historically black institutions by coining the term Jane Crow and co-founding the National Organization for Women. Murray personally challenged their rejection from Harvard Law School, asking the admissions department to reconsider changing their minds because changing their sex would not be as easy.

Pauli Murray also suffered emotional consequences from their resistance against gender norms. They had mental breakdowns yearly and was frequently hospitalized. The language, awareness, and respect for their complaints simply did not exist at that time. And so, Murray suffered.

Murray insisted on a full recognition of their integrated identity, which today would translate to intersectionality. While Murray and Ginsburg had extremely different paths, Ginsburg’s work would not have been possible without Murray’s unflinching drive. In “Reed v. Reed,” the first time the Equal Protection Clause was applied to sex discrimination, Ginsburg credited Murray as inspiration for her brief and put them down as honorary co-author. Some of us are Ginsburgs and some of us are Murrays, but most of us are somewhere in between. It takes all of us to create lasting change.

This Women’s History Month, my intention is to celebrate all of my experiences and dimensions as one full identity. I have been motivated by resistance to the status quo, ever since my mother taught me to ask “why?” I came to law school after #MeToo as a means of resisting and challenging the misogynistic Hollywood system of secret sexual abuse. I work at a public defender’s office to defy our state’s criminalization of poverty, drug and alcohol addiction, and mental illness. And I use my voice to ask my professors why originalism is the most “valuable” mode of constitutional interpretation.

Part of my identity includes resistance, but it also includes connection, warmth, hope and excitement. Part of me hates the very idea of Women’s History Month because of its implicit tokenization of half the population, but another part loves the opportunity to focus on the gamut of accomplishments that women have achieved and the obstacles that still exist. I first acknowledge that I’m the object, and by so realizing I become the subject. Women may have been given this month, but we’ll take it all.

A New Beginning? Justice Ginsburg and the Equal Rights Amendment

Timed to honor Women’s History Month, the House voted last week to remove the time limit on the ratification of the Equal Rights Amendment (ERA). The ERA, which would explicitly enshrine sex equality in the Constitution, was proposed by Congress in 1972 and sent to the states for ratification within seven years.  A supermajority of the states – 35 of them – ratified the ERA by 1977, but that was still three states short of the 38 needed to constitute the three-fourths of the states required under Article V of the Constitution.  Congress extended the deadline by another three years, but no additional states ratified the ERA until 2017, decades afterwards. Three states – Nevada, Illinois, and Virginia, ratified the ERA from 2017 to 2020, leading to litigation in courts and resolutions in Congress aiming to overcome the ratification deadlines.

The late Justice Ruth Bader Ginsburg was a lifelong proponent of the ERA.  While she litigated cases to persuade the Supreme Court to scrutinize sex discrimination under the Fourteenth Amendment through the 1970s, she developed a case for the ERA in her scholarly writings.  She argued that an explicit textual guarantee of sex equality in the Constitution was needed to give coherence and legitimacy to strong doctrinal development of the principle of gender equality. In the absence of a clear constitutional declaration of the equal citizenship stature of men and women, courts hesitated to develop the principle robustly, RBG wrote in 1979, because judges were understandably uneasy about stepping into “the gray zone between interpretation and alteration of the Constitution.”

Even though the Supreme Court that she joined did in fact shape sex equality as a constitutional principle in United States v. Virginia in 1996, Ginsburg continued to say, in public speeches, that the U.S. Constitution needed an ERA.  But her argument shifted: she emphasized its expressive, rather than doctrinal significance.  Her granddaughters and all Americans needed reassurance from the text of their pocket constitutions that the equal citizenship stature of women was as foundational to our political and legal order as other human rights, such as free speech.  After World War II, gender equality guarantees became a legitimating feature of every modern constitution.  In February 2020, in a public interview at Georgetown, Justice Ginsburg said:

The Constitution’s Preamble says, ‘We the People . . . in Order to form a more perfect Union.’ The Union will be more perfect if we added this clarion statement to our fundamental instrument of government: Men and women are persons of equal-citizenship stature. . . . Why should the rest of the world have the equivalent of an ERA while the United States lags behind?

However, it was the opponents of the ERA, rather than its proponents, who quoted Justice Ginsburg in the House floor debates about the future of the ERA last week. In that 2020 Georgetown interview, when asked for her prognosis for the ERA after the late ratifications by three states, Justice Ginsburg had replied:

I would like to see a new beginning. I’d like it to start over. There’s too much controversy about a latecomer like Virginia ratifying long after the deadline passed. Plus, a number of states have withdrawn their ratification. If you count a latecomer on the plus side, how can you disregard states that said, ‘We’ve changed our minds’?

ERA opponents in the House quoted these words to argue that the only legal way to add the ERA to the Constitution now is to introduce it anew, and that keeping the ERA alive by removing the deadline would be illegal.

This position misapprehends Justice Ginsburg’s impromptu preference for a “new beginning” as a legal ruling about what the constitution requires.  But Justice Ginsburg’s 1970s scholarship and congressional testimony as a law professor laid out reasoned arguments for why Congress had the constitutional power to change the ERA’s ratification deadline.  Although the situation in 2021 is different, in that Congress’s action would change the deadline retroactively by removing it rather than extending a deadline before it arrived, RBG’s careful reasoning about the legitimacy of the ERA deadline extension is as applicable to the current deadline removal effort.

RBG understood that Congress was the “director of the amendment process.” She described the ratification deadline as “a procedural fact of the amendment process.” Article V authorizes Congress to “propose” amendments and to designate the “mode of ratification.”  Furthermore, Article I Section 8 empowers Congress to make all laws that are “necessary and proper” for executing its other constitutional powers, including those under Article V. RBG argued, citing Coleman v. Miller, that it was proper for Congress to make the political judgment as to whether the public interest and relevant conditions warranted a change in the ratification time period, in much the same way that legislatures could decide to extend statutory statutes of limitations.  The ERA’s time limit was placed in the preamble to the proposed ERA and not in the constitutional text itself; it said that the amendment would be part of the constitution “when ratified” “within seven years” “by three-fourths of the several states” – leaving it unanswered as to whether it would be part of the Constitution if the states took longer than seven years.  Other ratification deadlines, for instance, that for the Prohibition Amendment, were placed in the constitutional text (and were therefore part of what the states ratified), and used language that explicitly expressed the intent that the amendment proposal expire if not ratified within seven years; Section 3 of the 18th Amendment reads, “This article shall be inoperative unless it shall have been ratified . . within seven years.”

There may be policy reasons to decide not to allow the ERA to continue to be ratified over forty years after the “when ratified” time limit, but such policy decisions are the province of Congress, rather than the courts. This is consistent with the recent dismissal by a district court of the case brought by the three late-ratified states against the National Archivist, seeking a declaration of the ERA’s validity. As the court dismissed the case for lack of standing, and alternatively reasoned that the seven-year deadline imposed by Congress was legally effective, it explicitly refrained from deciding the “difficult issue” as to whether Congress could extend or remove the deadline to validate the ERA’s resurrection, and the question of whether state efforts to rescind prior ratifications should be given effect.

As for rescissions, RBG testified that it was for Congress to decide, only after the thirty-eighth ratification occurred, whether to count any rescinding states as ratified states.  Indeed, after two states ratified and then rescinded their ratifications of the Fourteenth Amendment, Congress decided in 1868 to recognize that the Fourteenth Amendment was ratified. That step was necessary, though not sufficient, to direct the nation on the long path to racial justice that is still being paved. Although she – and many other ERA proponents – can appreciate the cleaner path of a brand-new ERA, her writings about the ERA and Article V clearly understood Congress to be the proper decisionmaker to resolve the controversy caused by lateness or rescission.  And that is precisely what the resolutions in Congress proposing to remove the deadline on ERA ratification seek to do, now that 38 states have ratified the amendment.

For RBG, Congress was not only in charge of the amendment process; it was also the primary implementer of the Equal Rights Amendment. In the inaugural issue of the Harvard Women’s Law Journal, she wrote:

With the Equal Rights Amendment, we may expect Congress and the state legislatures to undertake in earnest, systematically and pervasively, the law revision so long deferred. And in the event of legislative default, the courts will have an unassailable basis for applying the bedrock principle: All men and all women are created equal.

Section 2 of the ERA empowers Congress to enforce the amendment, and Section 3 delays the effective date of the ERA to two years after the date of ratification, so that Congress and state legislatures would comprehensively review and rewrite laws to ensure gender-equal rights. Courts would play a secondary role, stepping in when legislative action failed to guarantee equality. When Nevada ratified the ERA in 2017, nearly four decades after the deadline, ERA proponents quoted that paragraph from RBG’s article on the floor, affirming the importance of new laws advancing such policies as pregnant worker fairness and pay equity to the amendment’s meaning.

On March 17, the ERA deadline removal bill reached the floor of the House along with the Violence Against Women Act reauthorization bill. That day, the Senate Judiciary Committee concurrently held hearings on the Equality Act, which the House had recently passed.  The next day, the House Education and Labor Committee held hearings on the Pregnant Worker Fairness Act. In the 1971 words of Congresswoman Patsy Mink as she advocated for the ERA on the House floor, the ERA is “constitutional backing” for extensive legislation to eliminate situations that are discriminatory in effect. Such legislation will be critical to overcoming the devastating disproportionate economic effects of the Covid-19 pandemic on women, especially working mothers, who have left the work force in alarming numbers, largely due to the new caregiving burdens created by the shutdown of schools and daycares.  If future legislation to counter the dynamics that push women into traditional gender roles is challenged on other constitutional grounds, the ERA could save such legislation. In this unprecedented female recession, an unprecedented revival of a constitutional amendment on gender equality may be appropriate.

Nonetheless, the questions Justice Ginsburg raised about late ratifications and rescissions point to an important consideration in approaching the novel resurgence of the ERA:  the process by which the constitution changes can shape the change that is achieved. Congress’s process for recognizing that the ERA has been ratified is an opportunity for a democratically elected national body to stimulate a new era of policymaking. The legislative process of hearings and floor debates can articulate the goals of the ERA that have endured since the 1970s and become most urgent in 2021. In this unprecedented gendered economic crisis, a new way of forging a new beginning may be warranted.

Plenty of Glass Yet to Break

As we mark Women’s History Month this March, there is much to celebrate. We have, for the first time in history, a female Vice President of the United States, Kamala Harris (as well as the first-ever Black and Asian Vice President).  So many of the women I know shed tears of joy on Inauguration Day as many years of hope and hard work were realized in that moment. The exhilaration of watching that ceremony with my two young girls was beyond what I could have hoped. But it was an inflection point in a tale that is still unfolding.

As we look at the rest of our government leadership, there is yet much to do. President Joe Biden has been roundly and fairly praised for his diverse Cabinet picks, which have indeed broken barriers, including the first woman Secretary of the Treasury, Janet Yellen, the first woman Director of National Intelligence, Avril Haynes, and recently Secretary of the Interior Deb Haaland, a woman and first Native American to lead any cabinet-level agency. Women make up just 26.4% of the 117th Congress, with 24 in the Senate and 119 in the House. Women make up one-third of the United States Supreme Court and slightly less than one-third of the Article III lower federal courts.  There are still a handful of district courts where there has never been a female judge, and there are several more districts and a few circuits where there has never been a woman of color judge. Women are governors in eight states.

The legal profession also has a long way to go to reach any kind of parity. In its 2020 survey on the Promotion and Retention of Women in Law Firms, the National Association of Women Lawyers (NAWL) found that while women made up 47% of associates, they were only 21% of equity partners. Women of color made up 22% of associates but just 3% of equity partners.  Notably, when NAWL started reporting this survey in 2006, 15% of equity partners were women, reflecting a glacial pace for progress. As of 2019, women made up about one-third of law school deans, although about half of law students are women. Also, about one-third are women in General Counsel positions, and again, women of color make up a small part of that overall number.  As we look to another top echelon of the legal profession, women advocates at the Supreme Court, there is also so much room to grow. Women made just 20 arguments before the Court in the 2019 Term.

Why has progress been so slow, and why are women stalling out at one-quarter or one-third of these important spaces? First, there is the age old, “You can’t be what you can’t see.” As much as we have had women break barriers, and we have been celebrating the Year of the Woman since 1992, leaders are overwhelmingly male. We cannot normalize women in leadership when we see them only fleetingly. Additionally, some research has indicated that we don’t trust women. Even in countries like Germany and India, who have had notable women leaders, people are uncomfortable with women leaders.  We see male approaches to leadership as the expected way to do things. These phenomena are in addition to the structural barriers of women still being primarily responsible for childcare and having to weave such duties into their careers whereas men often do not have such constraints.  As we all know by now, the pandemic has not made that better.  At an even more basic level, women can’t control their own bodies in many respects let alone their career trajectories. Then-Senator Kamala Harris drove home the dichotomy between treatment of women and men in her questioning of now-Justice Brett Kavanaugh when she asked him to name one law that gives the government the power to make decisions about men’s bodies.  He was not only unable to do so, but he was confused by the very foundation of the question. We are living in a country that has thus far been unable to adopt the Equal Rights Amendment to the Constitution, simply confirming that, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

When asked when there would be enough female justices on the Supreme Court, Justice Ruth Bader Ginsburg now famously said, “when there are nine.” Many have chuckled at that response, but the resonant point is there – there will be enough when women get to dominate the space and set the standard for what is normal, just as men have throughout history. Perhaps someday we will not need to set aside one month to call out women’s accomplishments.  For now, there is plenty of glass that still needs breaking.

Jill Dash is ACS's Vice President of  Strategic Engagement and Immediate Past President of the Women's Bar Association of the District of Columbia.

Finding Hope in Visibility

Peggy Li is holding up a sign that says "Justice is intersectional"
The author, ACS Director of Chapters Peggy Li, at the 2017 Women’s March in Houston.

The ongoing and persistent hate, dehumanization, violence, and Othering has been overwhelming. This violence is not new. White supremacy, misogyny, and racism is ingrained in our country’s founding. This hate manifests itself in a multitude of ways to oppress, suppress, hurt, and kill communities that are Othered, including BIPOC communities, the LGBTQ+ community, and religious minorities.

In the last month, and especially in response to the tragic shootings in Atlanta, I am seeing something that I have never seen before in the news or in popular culture:

  • Discussions on anti-Asian animus and linking that animus to the broader fight against white supremacy;
  • A retelling of U.S. history that includes not only the Chinese Exclusion Act and Japanese Internment, but also the contributions of Asian Americans to American history including the 442nd Regiment, a segregated Japanese-American unit that is remembered today for its bravery in World War II and for being the most decorated unit in American history, and the work of AAPI leaders like Yuri Kochiyama and Larry Itliong who fought for liberation alongside Malcolm X, Cesar Chavez, and Dolores Huerta; and
  • Discussion on the ways race, gender, and national origin interact to create unique obstacles, stereotypes, and stigmas for Asian American women.”

I came across a Buzzfeed article, Asian Women Are Hypersexualized, So Don’t Tell Me The Killings In Atlanta Aren’t About Race,” and it stopped me in my tracks. That astonishment happened again when I came across NPR’sFor Asian American Women, Misogyny And Racism Are Inseparable, Sociologist Says.” These articles challenged the public to not only see last week’s attacks as motivated by the interaction of both race and gender, but also educated its readers about the unique oppression and violence that Asian American women face because of the dehumanizing fetishization, hyper-sexualization, and exotification of Asian American women. These articles validated my experiences and made me feel “seen” in a way that I had not experienced before. It also encouraged me to lift up my own work in this space.

As a first-generation Taiwanese American, I can recount multiple instances of friendly neighbors and do-gooders complimenting me on my English, finding me in a crowd to tell me about their recent trip to Asia, and asking me where I am really from. As an Asian American woman, I’ve also been subjected to inappropriate comments alluding to the fetishization and perceived submissiveness of Asian American women. These dehumanizing comments, the failure to see myself and my experiences reflected in discussions of the “glass ceiling” and the “bamboo ceiling,” and my desire to shed more light on the history of exclusion for Asian American women led me to publish Hitting the Ceiling: An Examination of Barriers to Success for Asian American Women in the Berkeley Journal of Gender, Law & Justice in 2014. In it, I argue that the “bamboo ceiling” and the “glass ceiling” necessarily excludes the experiences of Asian American women since the discrimination faced by Asian American women is wholly different from and more than the sum of the discrimination faced by white women and Asian American men.” Instead, “[t]o comprehend the experiences of Asian American women and create appropriate strategies for counteracting their oppression, we must look at how race, gender, and national origin interact to create unique obstacles, stereotypes, and stigmas for Asian American women. Intersectionality provides a framework to analyze [these experiences].” To better understand the unique experiences of Asian American women, my article recounts the history of exclusion of Asian American women in the United States from The Naturalization Act of 1790, the Page Law, and the Chinese Exclusion Act, to Japanese Internment. I also discuss the immigration patterns of Asian women. During the nineteenth century (and until the 1920s), very few Asian women entered the United States. Those that were allowed entry came to meet the demands for sex from both white men and Asian men. This led to the emergence of sexual stereotypes about Asian women as ultra-feminine, subservient, “lotus blossoms,” and “dragon ladies.” After discussing the history of these stereotypes, including modern manifestations of these stereotypes in film and television, I examine the Model Minority Myth, how it serves to further oppress Asian American communities and other communities of color, and how it puts Asian American women at an increased risk of sexual harassment. The rest of the article discusses how these stereotypes have contributed to discrimination and sexual harassment against Asian American women in the workplace, provides the standard for proving unlawful employment discrimination and an overview of employment discrimination cases brought by African American women and Asian American women, and illustrates the need for courts to embrace an intersectional and holistic approach to employment discrimination claims.

These past few months have been emotionally and physically exhausting. I am heartbroken, enraged, and overwhelmed by the attacks against Asian American elders, the shootings in Atlanta, and the barrage of violence against communities of color. But in this darkness, I also feel oddly hopeful. In the last few weeks, I have seen conversations and articles that weave Asian American experiences into the tapestry of American history and into the discussion of race in America. We have a long way to go, but we must continue to move forward, speak up, speak out, and get uncomfortable. To continue to move forward, we cannot treat these violent acts as isolated incidents perpetrated by individual bad actors. Instead, we must confront and acknowledge how this current wave of violence is inextricably linked to our country’s deeply rooted history of white supremacy and misogyny, be accountable for how we each contribute to white supremacy and misogyny, commit to truth-telling and education, and engage in reconciliation.

The U.S. Recommits to Sexual and Reproductive Health and Rights

Following four years of national policy designed to undermine gender equity and equality in the United States and globally, the Biden-Harris administration is taking steps to reverse course. As part of this effort, this week at the UN Human Rights Council, the new administration committed to promoting sexual and reproductive health and rights in the United States and around the world. This commitment sets the stage for real change. But action must follow intention.

Opportune timing of U.S. Universal Periodic Review

The administration’s commitment to upholding sexual and reproductive health and rights (SRHR) was made in the context of the United States’ third Universal Periodic Review (UPR), a comprehensive human rights review of each country that takes place before the UN Human Rights Council, approximately every four years. During the UPR, every UN member country can ask questions and make recommendations of the country under review. A unique feature of the UPR requires the country being reviewed to formally respond to each recommendation at the conclusion of the process. Between each four-year review cycle, the country is expected to demonstrate progress towards implementing the recommendations it received.

While the UPR may sound like a bureaucratic process with little potential for real-world impact, it is in fact an important opportunity for a government to establish its human rights commitments and mark progress in meeting them. Importantly, it’s also a mechanism for civil society to hold governments accountable for the commitments they make. Because of the timing of the latest U.S. review, for the Biden-Harris administration, it offers the added opportunity to turn the page on the Trump administration’s failings, including with respect to sexual and reproductive health and rights.

The United States’ third UPR took place in November 2020, just six days after the U.S. presidential election. During the review, the United States received hundreds of recommendations from UN member states on a range of important issues, including racial injustice, police accountability, capital punishment, climate change, immigration and asylum policy, and education. A significant number of recommendations focused on improving equitable access to comprehensive sexual and reproductive health care and services, advancing universal access to maternal health care, ending restrictions on international aid for sexual and reproductive health services, and improving access to basic health services for migrants and refugees in detention.

While the Trump administration represented the U.S. at the review in November, it was the Biden-Harris administration that was responsible for representing the U.S. when it returned to the UN Human Rights Council on March 17 to formally respond to the recommendations. The new administration noted support for most of the recommendations that the U.S. received, including those related to sexual and reproductive health and rights. In remarks at the Human Rights Council during adoption of the U.S. report, the U.S. representative noted the administration’s belief in “the advancement of gender equality and women’s and girls’ empowerment, including promoting their sexual and reproductive health and rights, both in the United States and globally.”  Likewise, in its written submission to the Council, the administration stated that “it is the policy of the U.S. to support women’s and girls’ sexual and reproductive health and rights in the U.S. as well as globally.”

Repudiation of Trump-era approach

The Biden-Harris administration’s support for recommendations on sexual and reproductive health and rights at the adoption of the U.S. UPR last week is a 180 degree turn from the Trump administration’s routine disavowal of such international human rights protections. In fact, in the U.S. national report for the UPR, submitted to the Human Rights Council prior to the review in November, the Trump administration rejected any human rights protections for sexual and reproductive health, including access to abortion services. At the interactive portion of the November review, it likewise rejected the notion that international human rights protect sexual and reproductive health, specifically abortion access.

More broadly, the Biden-Harris administration’s response signals a rebuke of the Trump administration’s policies which systematically undermined access to the full range of reproductive health care -- from quality prenatal and pregnancy care to abortion care. These policies have exacerbated systemic inequalities and imposed harsh burdens on marginalized communities, including Black, Indigenous, and people of color, people with disabilities, LGBTQ+ people, immigrants, people with low-income or living in poverty, and people who are incarcerated.

These harmful policies were implemented against the backdrop of the Trump administration’s commitment to appointing judicial nominees, including three U.S. Supreme Court justices, hostile to constitutional protections for reproductive rights. The legacy of these appointments poses a real threat, as states propose and enact increasingly extreme and unconstitutional abortion bans and restrictions in an effort to have the Court overturn or substantially weaken longstanding constitutional protections for reproductive rights.

Reclaiming SRHR globally and in the U.S.

Beyond its supportive responses to the UPR recommendations, the Biden-Harris administration, which announced its intention to reengage with the UN Human Rights Council and seek election to a seat on the Council for the 2022-24 term, has taken critical steps to undo some of the Trump-era wrongs related to sexual and reproductive health and rights. Importantly, on January 28, it issued a Presidential Memorandum repealing the “Global Gag Rule”, which prohibited foreign organizations receiving U.S. global assistance funds from providing abortion information, referrals, or services, even if they used a separate funding source to do so. The memo also directed the Department of Health and Human Services to consider rescinding regulations prohibiting clinics receiving Title X family planning funds from referring patients for abortion services; withdrew United States’ sponsorship from the anti-abortion and anti-LGBTQ Geneva Consensus Declaration; and restored funding to the UN Population Fund (UNFPA) to support sexual and reproductive health needs globally.

Immediately after taking office, President Biden reversed the Trump administration’s effort to withdraw from the World Health Organization, signaling resolve to re-engage with the international community to support global health, including sexual and reproductive health.

And, on International Women’s Day, March 8th, the Biden-Harris administration released an Executive Order establishing a new Gender Policy Council within the Executive Office of the President, with a key role in advancing domestic and foreign policy development.

Acting on the commitment

These are important first steps. As my organization, the Center for Reproductive Rights, and other organizations noted at the adoption of the U.S. UPR report, next must come meaningful action, including robust implementation of the UPR recommendations that the administration is now on record as supporting.

The Biden-Harris administration should rescind additional Trump-era regulations, including those that allow health care workers to deny reproductive health services and information to patients, and those that enable employers and universities to deny contraceptive coverage to their employees and students. The administration must promote reproductive health policies guided by science, not ideology, including by allowing access to medication abortion by telemedicine. Moreover, the new administration should submit a budget proposal that does not include the discriminatory Hyde Amendment or related abortion funding restrictions.

In addition, it should restore reporting on sexual and reproductive health and rights in the State Department’s annual Country Reports on Human Rights Practices and support the Reproductive Rights are Human Rights Act; disavow the report by the Trump-era State Department’s Commission on Unalienable Rights; and stop over-broad implementation of the Helms Amendment and push for its Congressional repeal through the Abortion is Healthcare Everywhere Act. The Biden-Harris administration should adhere to core human rights treaties and support the inclusion and recognition of sexual and reproductive health and rights as fundamental human rights in UN processes.

And the administration should champion legislation that ensures access to abortion care for all, globally and in the United States. This includes the Women’s Health Protection Act, which would provide safeguards against abortion bans and medically unnecessary restrictions; the EACH Act, which would reverse the Hyde Amendment and related abortion funding restrictions; and the Global HER Act, which would permanently repeal the Global Gag Rule.

The administration must also act to end racial disparities in maternal health care and advance progressive maternal health policy with a focus on racial equity, including by championing the Black Maternal Health Momnibus Act, a set of bills that address maternal health issues faced by Black, Indigenous, and people of color, veterans, women who are incarcerated, and others impacted by failings of the maternal health system.

Of course, the human rights and constitutional principles underpinning these policies can only be fully realized if they are enforced and people can vindicate their rights in the courts. It is critical that the Biden-Harris administration put forth judicial nominees with positive records on reproductive health, rights and justice or who make clear their understanding that the Constitution protects individual liberty and the right of all people to make personal decisions about their bodies and personal relationships.

Realizing reproductive rights as human rights

Reproductive rights are human rights, grounded in the Universal Declaration of Human Rights and the core human rights treaties. They are integral to the realization of the rights to health, life, equality, information, education, privacy, freedom from discrimination and violence, and freedom from torture and cruel, inhuman, and degrading treatment, among others.

In supporting UPR recommendations based in the recognition of these core protections, the Biden-Harris administration has leveraged an important opportunity, on the global stage, to distinguish itself from the previous administration and reaffirm these rights. For its commitments to have real impact, however, it must now implement the recommendations and make stronger protections a reality for all - within the United States and around the world.