Toward equal rights for men and women, by Ethel M. Smith Toward Equal Rights for Men and Women By Ethel M. Smith Published by the COMMITTEE ON THE LEGAL STATUS OF WOMEN NATIONAL LEAGUE OF WOMEN VOTERS 532 Seventeenth Street, Northwest Washington, D. C. May 1929 Price: Fifty Cents per Copy Copy 2 HQ1239 .36 Copy 2 Copyright 1929 by the National League of Women Voters ©CIA 8466 R JUN -4 1979 3 FOREWORD In the following study, Miss Smith has undertaken a difficult task and has accomplished as extraordinarily successful result. She has shown, in an impressive way, the great complexity of undertaking to restate the law with reference to the position of women so that that position may be in accord with modern needs and modern social development. Under the earlier law the woman was generally less than fully responsible. The young woman was subject to the limitations of infancy, the married woman under coverture was legally incompetent, the married woman under the civil law might arrange for the independent conduct of her own affairs, but the presumption in favor of the community generally gave to the husband complete management during their joint lives. The unmarried woman might be legally competent, but she was occupationally restricted and inferior from the point of view of inheritance. So that marriage or the convent were the only socially reputable channels of self-expression. In those earlier times, governments were absorbed in problems of national existence, of public finance, in overcoming conditions of precarious economic life, threatened by other governments and by lack of natural resources. Issues were therefore neglected and questions ignored to which under conditions of economic and political stability replies must be found. The great question is how to get the woman out from under these restrictions—from infancy to adult life, from coverture to the light of self-determination, from occupational restrictions to occupational freedom. With independence should come equality, but the independence comes first, and often the problem of independence will give rise to grave doubts, not as to whether equality is desirable, but wherein equality consists. “Hard cases make bad law” we are told. Certainly the hard position of the wife at common law found most inadequate remedy in the equitable separate estate and in the statutory separate estate under the so-called married women's property rights statutes in the United States. The husband was a Toward equal rights for men and women, by Ethel M. Smith http://www.loc.gov/resource/rbnawsa.n2783 person of too great power, too little responsible; the wife of too little power and no legal capacity. The remedy found for this did not follow the rational plan of increasing his responsibility, while giving her responsibility likewise, but of giving her a limited right to use her own property for her own purposes. At the present moment, the place of the family in the life of the time, the respective duties and rights of husband and wife, are subjects which would be subjected to the most searching analysis, the most intelligent 4 and careful scrutiny. Equality is one principle to be applied in working out the change from what has been and what is to what should be. But no quantitative or mechanical or mathematical conception can comprehend the entire undertaking. There are qualitative considerations—matters of emphasis, of stress, of social importance that should also affect these decisions of issues that affect the very source from which the race draws its being. Miss Smith has called attention to the variety of influences from which the law has sprung, and the great number of points at which it must be changed. The law of public organization, the marital law, the poor law, the law of master ad servant are all of importance. In public organization there are questions of holding office, of jury service, etc. In the family law, there are reciprocal rights and duties, especially with reference to the care and nurture of the children; in the poor law, the matter of protecting the taxpayer and also of sound methods of treatment. The possibilities of applying the principle of equality in these different fields vary enormously. With a very great respect then for those who urge that the principle of equality is universal in its applicability and comprehensive in its influence, Miss Smith has shown that there are many phases of the movement toward legislative reform in the legal relations between men and women in which the principle cannot be applied with arbitrary uniformity. She has done more than this. She has portrayed something of the chaos and confusion that would result from the adoption of the “equal rights” amendment and from the more extended reliance on the so-called “blanket” enactments in the various states. She has shown, too with great patience and thoroughness, the result to be anticipated from complaisant application of the principle to labor legislation and to international relationships. To the person in immediate contact with those who suffer from inadequate legislative reform, the proposals she is combatting seem both doctrinaire in their general bearing and tragically remote from the realities of life. To the difficult and absorbing task of readjusting the rights and duties of men and women to the demands of the newer order, this study makes a real and very important contribution. Toward equal rights for men and women, by Ethel M. Smith http://www.loc.gov/resource/rbnawsa.n2783 Sophonisba P. Breckinridge Chairman, Committee on the Legal Status of Women University of Chicago May, 1929 5 TABLE OF CONTENTS Points of View and Responsibilities 7 Before Woman Suffrage 11 Using the Vote—The Achievements of Seven Years 13 Re-examining the Problem 18 I. The Realistic Approach 18 The Status of Women Today 18 Differentiation versus Discrimination 19 What Are Equal Rights? 21 Public Rights 21 Citizenship 21 Eligibility to Public Office 22 Jury Service 23 Party Management 23 Private Rights 24 Married Women's Property 24 Marriage Age 27 Divorce 28 Toward equal rights for men and women, by Ethel M. Smith http://www.loc.gov/resource/rbnawsa.n2783 Non-support 28 Guardianship of Children 30 Sex Offenses 30 Public Health and Social Welfare 32 Maternity and Child Protection 34 Prohibited Occupations 36 Health Regulations 39 Regulation of Hours and Wages 40 Recapitulation 53 II. The Theoretical Approach 58 Equal Rights by Federal Constitutional Amendment 58 Equal Rights by Treaty 59 The Case against the Amendment 60 1. Its Doubtful Premises and Presumptions 61 2. Its Effectiveness 63 3. Its Ineffectiveness 65 4. Its Uncertainties 68 5. Its Slowness 74 6. Its Cost 76 7. Its Objectionable Method 77 Toward equal rights for men and women, by Ethel M. Smith http://www.loc.gov/resource/rbnawsa.n2783 Questions Raised by the Treaty Proposal 81 Recapitulation 84 As to the Amendment 84 As to the Treaty Proposal 85 6 International Issues and Comparisons 87 - Different Concepts of Sex Equality 87 Equal Rights Legislation Abroad 89 Great Britain 90 Denmark 93 Norway 94 Sweden 94 The Netherlands 94 Germany 95 Luthuania 96 Austria 97 Esthonia 99 Czechoslovakia 99 Free City of Danzig 100 Women's Rights Legislation in Latin America 100 Rights of Married Women 101 Toward equal rights for men and women, by Ethel M. Smith http://www.loc.gov/resource/rbnawsa.n2783 Social and Labor Legislation 105 International Conventions and Recommendations 108 Work of the Advisory Commission on Traffic in Women and Children 108 International Labour Conventions 109 - Pan American Conference 113 Project for Uniform Legislation 113 Maternity Protection for Employed Women 115 Inter-American Commission of Women 116 Feminist Issues Abroad 118 - British “New Feminism” versus the Equalitarians 119 - British Labour Women and the Feminists 122 - “Equal Rights” and Women of Latin America 124 - The Question in the Internaional Alliance of Women for Suffrage and Equal Citizenship 127 The Question in the International Council of Women 131 Equality as Defined by International Labour Groups 133 - Résumé 135 General Conclusions 136 General References 138 7 POINTS OF VIEW AND RESPONSIBILITIES Toward equal rights for men and women, by Ethel M. Smith http://www.loc.gov/resource/rbnawsa.n2783 The woman movement of our time took form in eighteenth-century France and England. This was the France of the Revolution, which was fighting for the “natural rights” of the individual. It was the England of a less bloody transition, but a no less convinced individualism, where feudalism was yielding to ideals of modern democracy; the England whose rebellious colonists in America were launching a new form of government with a Declaration of Independence which proclaimed: “All men are created free and equal.” It was an age of individualistic thinking everywhere. But it was an age when a third great revolution, of a different but still more comprehensive kind, was also under way. Machines, and steam and electric power, had begun to change the world of individual artisans and craftsmen into working masses of people whose lives were controlled not by themselves but by machines and the owners of machines. Mass production, rapid transport, world-wide markets, supplying new millions of a fast increasing population, were changing the social and political forces of life, and compelling nations to think, not first in terms of the individual as the basic unit of society, but of groups and kinds and classes. Science had created something which no individual human being could control, and under which no individual could escape the consequences of his neighbor's fate. Not individualism, not laissez-faire for this new age—that old philosophy would not do. Tragic experience proved that the social policy which left “every fellow for himself” left, in literal truth, the hindmost to the devil.