A Platform for Progress: Building a Better Future for Women and Their Families: Guaranteeing Equal Rights

Promoting a Fair and Independent Judiciary

Over the last 35 years, the federal courts have given life and meaning to legal rights for women, through their interpretation of the Constitution's equal protection and privacy guarantees, including the right to decide whether to have an abortion, and their application of federal statutes aimed at eradicating sex discrimination and otherwise advancing women's rights. Many of these fundamental legal rights and principles, which are critical to women, have been placed at risk by the judicial appointments made during the Bush Administration to the Supreme Court as well as to the Courts of Appeals. The strong tilt of the federal courts to judges hostile to legal rights of importance to women can be corrected by both the President and the Senate.

• Ensure that Nominees Have a Demonstrated Commitment to Upholding Longstanding Legal Protections and Principles. Many of President Bush's most controversial nominees, including those to the Supreme Court, had prior records of hostility to women's fundamental legal rights, such as the constitutional right to privacy. Once confirmed, these nominees have participated in decisions that dramatically limit key legal protections, including the right to equal pay, the right to decide whether to have an abortion and access to the courts. The President should nominate only those individuals who have exemplary records in the law and a demonstrated commitment to protecting the legal rights of ordinary Americans, including women's rights, civil rights, and individual liberties. All judicial nominees must respect the constitutional role Congress plays in promoting women's rights and establishing health, safety and other key protections, as well as in providing remedies when these rights are denied.
• Engage in Serious Consultation Before Nominees are Selected. The President should consult widely in selecting nominees to ensure that controversial ideologues are not nominated for judicial positions.
• Nominate Individuals with Diverse Backgrounds. The President should promote diversity – on the basis of gender, race and ethnicity – on the federal bench.
• Senators' Role of Advise and Consent Must Include Thorough, Wide-Ranging Review and Ability to Satisfy Themselves Regarding Nominees' Records, Views and Judicial Philosophy. The President's nominees should have publicly available records of their backgrounds and judicial philosophy sufficient to permit meaningful review by the Senate. At the same time, Senators should exercise their constitutional responsibility to provide “advice and consent” on judicial nominations by thoroughly scrutinizing those records and satisfying themselves that the nominee has a commitment to equal justice. As part of this review, Senators must require the nominee to address legal precedents on equal protection of the laws and non-discrimination in the workplace, in school, and in other facets of American life; the constitutionally protected right to privacy, including Roe v. Wade; and Congress' role in providing key protections for women's health, safety and economic security.
• Hold Judicial Nominees Accountable for Their Records. Judicial nominees with troubling records have often, during the confirmation process, tried to distance themselves from their prior positions, given evasive answers to questions about particular legal decisions or their judicial philosophy, or made general assurances that they respected precedent and would put aside their personal views as a judge. But once confirmed, their judicial decisions bear the unmistakable traces of the troubling views manifested in their earlier records. Senators should require nominees to demonstrate their fitness for the federal bench and, rather than place on the American people the risk of the confirmation of an unsuitable nominee to a lifetime position, refuse to confirm individuals whose records fail to demonstrate respect for fundamental constitutional and other longstanding legal rights.

Ensuring Broad Legal Protections

Women lack the broad-based fabric of protections against sex discrimination that they sorely need and that many other groups facing discrimination have had for many decades. These gaps in protection are harmful, whether in health care, insurance, public welfare or other key aspects of public life. It is critical to ensure that women are fully protected from the barriers and discrimination they continue to face on the basis of their sex.

• Enact a Comprehensive Federal Ban on Sex Discrimination. Some federal statutes that protect racial and ethnic minorities, as well as individuals with disabilities or those facing discrimination on the basis of age, are far broader than those protecting women based on their sex. Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act bar all recipients of federal funds from discriminating on the basis of race and national origin, disability, and age, respectively. In contrast, the statute banning sex discrimination by recipients of federal funds extends only to educational programs and activities. In addition, while discrimination based on race, national origin and disability is prohibited in public accommodations, there is no comparable federal prohibition on sex discrimination. And there is no broad-based prohibition on discrimination on the basis of sex in insurance, unless the insurance is provided in the context of employment. Congress should enact statutory protections that will bar sex discrimination in all programs that receive federal financial assistance, as well as in public accommodations and public services.
• Adopt the Convention on Elimination of All Forms of Discrimination Against Women. The United States has failed to ratify the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), an international bill of rights for women that was adopted in 1979 by the UN General Assembly. CEDAW not only defines what constitutes discrimination against women; it also requires signatories to effectuate its broad-based principles of equality by abolishing all discriminatory laws, adopting new laws necessary to protect women from discrimination, and establishing tribunals and courts to ensure the effective execution of the Convention's protections. The United States is the only industrialized nation that has not ratified CEDAW, which means that this country cannot assume its rightful role in pressing for women's rights around the world. Nor are women in this country brought into the convention's protective framework. The United States should adopt a strong and effective CEDAW.
• Secure Constitutional Protection Against Sex Discrimination. Under the Constitution, sex discrimination is evaluated under what is termed “middle-tier” scrutiny, rather than under the strict scrutiny standard that is applied to discrimination based on race and national origin. The lesser protection makes it harder to invalidate government practices that discriminate against girls and women. Moreover, recent judicial appointments have raised questions regarding the commitment of these judges even to the “middle-tier” standard. The Supreme Court should interpret the Constitutional Equal Protection Clause to apply a standard for evaluating sex discrimination that is at the highest level, and Congress and the states should enact and ratify the Equal Rights Amendment.

Protecting Women From Domestic Violence

On average, in 2005, more than three women a day were murdered by their husbands or boyfriends in this country. In 1994, the Violence Against Women Act was signed into law – the first federal legislation to acknowledge domestic violence and sexual assault as crimes, and to provide federal resources to encourage community-coordinated responses. But insufficient resources have been provided to ensure adequate enforcement of the law.

• Fully Fund and Better Implement the Violence Against Women Act. In FY 2008, Congress increased funding for some programs under the Violence Against Women Act (VAWA) but cut funding for others. Congress should fully fund programs under VAWA. In addition, the Administration should issue the regulations necessary to ensure that victims of domestic violence, including immigrant women, are fully protected under the law, including in public housing.
• Fund the Victims' Compensation Fund. The Victim of Crime Act (VOCA) Fund – the greatest source of federal support for local crime victim services and victim compensation – has seen drastic cuts in recent years and was funded last year at its lowest level in six years. Each year, Congress sets a cap for the VOCA funds that can be distributed. Congress should raise the cap and increase funding for crime victim assistance.
• Assist Victims of Domestic Violence in the Workplace. Congress should amend the Family and Medical Leave Act to ensure that leave taken to address the consequences of domestic violence, such as attendance at court proceedings, is covered under the Act.

Protecting Victims of Human Trafficking

Human trafficking results in horrific exploitation of its victims. In the U.S., victims of trafficking are almost exclusively immigrants, and mostly immigrant women. Often trafficking occurs among domestic workers. While federal law bars trafficking and provides for certain penalties for traffickers, trafficking remains far too prevalent, both internationally and within U.S. borders.

• Strengthen Protections Against Trafficking. Federal law against trafficking is currently being reauthorized. Congress must make sure that the law's enforcement provisions, including its penalty provisions, are adequate to address the problems encountered by immigrants, domestic workers, children, and the broad array of vulnerable groups subject to trafficking practices. The Administration should also enforce relevant laws and treaties.

Ensuring Fair Treatment for Immigrants

Immigrants, especially immigrant women, are a particularly vulnerable group because, among other things, they face unwarranted restrictions on rights and benefits provided to native born Americans and because they often lack vital legal protections. For example, many public benefits programs, such as the Supplemental Security Income program, are restricted for lawful immigrants and unavailable for undocumented immigrants, and children of undocumented immigrants are barred from many sources of federal and state support for higher education.

• Eliminate Unwarranted Restrictions on Immigrants. Congress and the Administration should work to ensure that immigrants are not subject to unfair restrictions because of their immigration status. For example, it is critical that workplace protections, such as anti-discrimination laws, fully apply to immigrants; that educational opportunities are made available to immigrants and their children; and that immigrants' eligibility for government benefits is not unreasonably limited. Congress and the Administration must eliminate barriers that prevent achievement of these goals.

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