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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Gender Equality Back on the Agenda: the White House Gender Policy Council
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Sunday, January 31, 2021
Gender Equality Back on the Agenda: the White House Gender Policy Council
Linda McClain
In a steady stream of executive orders and policy
proposals, President Biden has taken steps to undo some of the damage done by
the Trump Administration and to declare the values and priorities of the new
Biden/Harris Administration. Fortunately, gender equality is among those
priorities. On January 19, the day before their inauguration, President-elect
Biden and Vice President-elect Kamala Harris announced the creation of a White House
Gender Policy Council, co-chaired by Jennifer Klein, chief strategy and policy
officer of TIME’s UP, and Julissa Reynosa, incoming assistant to President
Biden and chief of staff to Dr. Jill Biden (and who also served in the Obama
Administration). The Council is, in effect, a reboot of the White House Council
on Women and Girls, created by the Obama-Biden administration in March 2009 but
disbanded by the Trump Administration in
2017. In announcing the Gender Policy
Council, President-elect Biden stated: “The work of this Council is going to be
critical to ensuring we build our nation back better by getting closer to
equality for women and to the full inclusion of women in our economy and our
society.” The Council’s purpose, he announced, would be to help guide and coordinate
government policy that impacts women and girls across a wide range of issues,
including economic security, health care, racial justice, and gender-based
violence. Vice President-elect Kamala Harris elaborated: “All Americans deserve
a fair shot to get ahead, including women whose voices have not always been
heard.” She declared her eagerness to work with the Council “to address the
challenges facing women and girls, and build a nation that is more equal and
just.” The establishment of the Gender Policy Council is a vital step after the
Trump Administration’s unrelenting hostility to gender equality and to women’s
rights. Significantly, the Council seems likely to approach gender equality and
the category “women” in an inclusive and intersectional way, attentive to
problems of equity and racial justice. The Council appears to be one critical
part of the Biden/Harris Administration’s broader “equity agenda,” evident in
executive orders on advancing racial equity, equity for other “underserved communities,” and LGBTQ+ rights. As this new Council begins its work, it is
worth considering some parallels to the earlier White House Council on Women
and Girls as well as some differences. When President Obama announced the creation of the
Council, he declared that its purpose was to ensure “that American women and
girls are treated fairly in all matters of public policy” and that all federal
agencies “take into account the particular needs and concerns of women and
girls.” As I observed in an earlier article in Michigan State Law Review, “President Obama linked signing the
order not only to his role as President, but also to his experience ‘as a son,
a grandson, a husband, and a father’; seeing his grandmother’s experience
hitting a glass ceiling in banking; seeing ‘Michelle, the rock of the Obama
family[,] . . juggling work and parenting with more skill and grace than
anybody that I know’; and seeing his mother’s own struggle to raise him on her
own.” President Obama connected such personal stories to the “broader story of
women in this country—a story of both unyielding progress and also untapped
potential.” In announcing the Council, President Obama also
reiterated a theme sounded in other areas of his domestic policy: the issues
the Council’s would address “are not just women’s issues,” but also family and
economic issues. Thus, workplace flexibility wasn’t “just a women’s issue,” and
the absence of such flexibility showed the serious “disconnect between the
needs of our families and the demands of our workplace.” The President and
First Lady Michelle Obama both used their own family experience to support the
call for flexibility and to elevate the importance of supporting caretaking. Fast forward to 2021:
President Biden’s “agenda for women” echoes President Obama’s rhetoric
in stating Biden’s belief that “every issue is a women’s issue—health care, the
economy, education, national security;” he adds that “women are also uniquely
and disproportionately impacted by many policies.” Similarly,
Obama Administration veteran Susan Rice, director of Biden’s Domestic Policy
Council, has stated that “every issue is a woman’s issue.” Rice stated that the Gender Policy Council and its “two
qualified and tested co-chairs will be key in marshaling every part of our
government and working directly with communities to ensure all women and girls
are entitled to equal rights and opportunities.” Along those lines, Tina
Tchen, former executive director of the Obama Administration’s White House Council
on Women and Girls (and now CEO of TIME’S UP), explains that it is
“significant” that, structurally, the White House Council on Gender Policy will
be at “a level commensurate” with the Domestic Policy Councils and the other
policy councils – the National Economic Council and the National Security
Council. Vice President Harris has further indicated that the Administration’s effort
to “pursue a comprehensive plan to open up opportunity and uphold the rights of
women” will include not only women in the U.S., but also “around the world.” Just as President Obama and First Lady Michelle Obama
both offered personal narratives in support of the need for the White House
Council on Girls and Women, President Biden and Vice President Harris have
drawn on personal stories to give force to the political imperative for gender
equity and equality. Vice President Harris, whose inauguration has already
shattered barriers, has spoken of her own intersectional identity and how that
shapes her commitments to equity and equality. One difference from the Obama-era White House Council
on Women and Girls is the more explicitly intersectional framing of the Gender
Policy Council. Both President Biden and Vice President Harris have shown awareness
of the need for training (as gender economist Katica Roy puts it) an “intersectional gender lens” on problems and policies. The pandemic is one example. In pledging
to build back better, they spoke repeatedly of the disproportionate toll that
the COVID-19 pandemic had taken not only on women, but specifically on women of
color. Their “American Rescue Plan” is attentive to the pandemic’s disproportionate
burdens on communities and families of color. It recognizes that “African-American
and Latina women” have “borne the brunt of the pandemic” and the economic
crisis, and are “overrepresented among long-term care workers.” Like the Obama Administration, the Biden-Harris
plan recognizes the critical role of caretaking (both paid child and elder care
and parental care). It identifies the gender and race dimensions of who is
providing such care and how the child care crisis has led to a disproportionate
number of women leaving the paid workforce. As Naomi Cahn and I argue in a
forthcoming article in Georgetown Journal
of Gender & the Law, a just recovery plan (what we call a “feminist
recovery plan”) should include building a care infrastructure that will
increase access, affordability, and quality – and address the intersecting inequities
of the current system. This is the type of policy initiative that the Council
can ably guide. Finally, another difference with possible normative
and policy significance is the naming of the new council as the Gender Policy
Council. Certainly, the public statements by President and Vice President
Harris about the Council’s role in the Administration reveal an animating
concern to advance equality and full inclusion for women and girls. That is a laudable and necessary commitment. At
the same time, “gender policy” may also encompass a broader range of issues,
such as the Administration’s commitment to combating discrimination based ongender identity and sexual orientation, understood as forms of “sex discrimination”
(in light of Bostock v. Clayton County
(2020)). Also under the rubric of “gender policy,” I would propose, should be
initiatives to understand how misogyny and white supremacy play a part in
conceptions of masculinity that fuel domestic extremism of the type that led to
the insurrection on January 6th. Further, as the Biden-Harris Administration
moves forward with implementing its commitment to “an ambitious
whole-of-government equity agenda,” it provides a vital opportunity to address important
questions about the relationship between equity and equality and how best to
pursue commitments like equal opportunity.
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