September 25, 2018
Last week, on Wednesday, September 20, mockery of sexual assault and the #MeToo movement was once again used as a means of engaging an audience: in response to the accusations of sexual assault recently brought by Dr. Christine Blasey Ford against Supreme Court nominee Brett Kavanaugh, South Carolina Representative Ralph Norman asked the crowd at a Kiwanis Club debate whether it had heard the news that, ”Ruth Bader Ginsburg came out that she was groped by Abraham Lincoln.” This was reportedly met with scattered laughter and applause among audience members. The comment came a few days after Donald Trump, Jr. posted on Instagram a photo of a crumpled piece of paper with the handwritten words, “Hi Cindy will you be my girlfreind [sic] _ yes _ no Love Bret,” accompanied by the header: “Judge Kavanaugh’s sexual assault letter found by Dems…” Both Trump’s Instagram post and Representative Norman’s comments perpetuate a longstanding tradition of ridiculing women’s rights and deriding their advocates. From time immemorial, the topic has provided a seemingly endless source of purportedly comic material.
This may help explain why the addition of “sex” to Title VII of the 1964 Civil Rights Act has gone down in some recorded history as having been a joke. Title VII of the 1964 Civil Rights Act prohibits discrimination in employment on the basis of race, color, religion, national origin and, thanks to the so-called “sex amendment,” gender. There has long been speculation that “sex” was introduced into Title VII of the bill as either a practical joke or a last-ditch effort to ensure the failure of the bill.
The evidence supports the conclusion that the amendment adding “sex” to the list of protected classes under Title VII of the Civil Rights Act of 1964 was not in fact intended as a prank or an effort to defeat the bill, even though there was strong opposition. Representative Howard Smith, an eighty-year old Democrat from Virginia and avowed segregationist, introduced the addition of the word “sex” into Title VII most likely as an attempt to weaken the bill’s protections against purely racial discrimination.
Representative Smith originally proposed adding “sex” to Title VII a mere two days before the entire bill was up for vote by Congress. Had Rep. Smith done so in order to defeat the bill, he likely would have targeted Members of Congress allied with labor unions traditionally opposed to the inclusion of women in employment legislation. He also likely would have been influenced by older women’s rights activists who had fought for “protective” labor laws “protecting” women from certain kinds of work, which “protective” laws would be deemed discriminatory and thus nullified by Title VII. These were laws that “protected” women from, for example, entering into occupations considered dangerous or “un-womanly,” such as jobs requiring heavy lifting, long hours, night work and so forth.
The idea that Rep. Smith introduced the “sex amendment” in the hope of defeating the bill is a compelling story and, to some extent, makes sense: Rep. Smith was a notorious segregationist who had openly voiced his opposition to the Civil Rights Act of 1964 and ultimately voted against the bill. He introduced the “sex amendment” in a jocular manner, inciting laughter from the floor and sparking hours of lively discussions among Members of Congress during what has come to be known as “Ladies Day.”
However the laughter that Rep. Smith’s proposal elicited should not be interpreted as mockery of the concept of the “sex amendment” itself. The matter was already a subject of serious debate even before the Civil Rights Act of 1964 was introduced. Discrimination against women had already been discussed extensively in Congress and, in fact, under President John F. Kennedy’s leadership, Congress had already passed the Equal Pay Act in 1963 just one year earlier. Evidence points to Members of Congress instead laughing at Rep. Smith’s delivery, not the addition of “sex” to the bill per se.
In his speech to Congress advocating the “sex amendment,” Rep. Smith read aloud a letter he had received from a constituent asking Congress to address the “right” of every American woman to a husband. Despite the purportedly humorous way in which Rep. Smith introduced the “sex amendment” and the pervasiveness of the myth that he did so with the intention of derailing the bill, his actions most probably stemmed from a longstanding commitment to women’s rights – provided, however, the women were white.  
Since 1943, Rep. Smith had been a sponsor of the Equal Rights Amendment (of 1963, the “ERA of 1963”), a proposed amendment to the Constitution of the United States to prohibit discrimination in civil rights on the basis of sex. The National Woman’s Party (NWP), a fringe organization that had for years lobbied Congress to pass legislation protecting women against discrimination, was a tireless advocate for the ERA of 1963. The Chairperson of the NWP, Alice Paul, had formerly worked with Rep. Smith, and the two were friends.
Moreover, seven years prior to 1964, Rep. Smith had supported the inclusion of protections against sex discrimination through a proposed Civil Rights Commission. Rep. Smith is on record stating, regarding the proposed Civil Rights Commission, that “if this iniquitous piece of legislation is to be adopted, we certainly ought to try to do whatever good with it that we can.” This statement mirrors the logic behind his introduction of the “sex amendment” to Title VII.
Indeed, as a staunch opponent of civil rights, Rep. Smith’s support for the “sex amendment” appears to have been derived from a desire to protect white women specifically. He subscribed to the argument that, without the “sex amendment,” white women would have less protection against discrimination than either black men or black women. When a black woman and a white woman both filed the same claim of workplace discrimination, only the black woman would have legal recourse.
In addition to aligning with Rep. Smith’s ideological track record, the view that the “sex amendment” was introduced with the true intent of being included in Title VII is also consistent with the recorded history of the bill. The “sex amendment” was proposed on Saturday, February 8, 1964, by which time most Southerners had given up on their hopes of defeating the bill and, quite literally, gone home. Indeed the “sex amendment” to Title VII elicited the highest number of votes of any proposed amendment that day. Other amendments that were introduced having the potential to “clutter up” and thus derail the Civil Rights Act of 1964 were not passed. In any case, had Members of Congress supporting the bill perceived the “sex amendment” as a great threat to the bill, they would have disposed of it two days later when the bill in its entirety was up for review prior to the final vote.
Rep. Smith does not deserve full credit for the introduction of the “sex amendment” to Title VII of the Civil Rights Act of 1964. His actions were in part the product of the significant work of a focused and determined group of women who had, for years, attempted to pass legislation aimed at protecting women from discrimination. Alice Paul and Representative Martha Griffiths, a Democrat from Michigan and a longtime supporter of the ERA of 1963, among others, were at the forefront of the battle.
The women advocating that “sex” be added to the bill faced extensive ridicule and criticism, including from other civil rights activists who accused them of capitalizing on the momentum of the civil rights movement solely to advance their own agenda of passing women’s rights-protecting legislation. These accusations were not unfounded: women who had no interest in the civil rights movement still benefited from it. However, women’s advocates’ strategic decision to harness energy from the civil rights movement appears to have stemmed from desperation: they had, for years, attempted extensively to rally support for their own movement, and yet, despite their efforts, remained unsuccessful in generating enough momentum around the idea of women’s rights to pass new separate legislation through Congress. They advocated a “sex amendment” to the Civil Rights Act of 1964 because they had been unsuccessful in passing a bill that would have focused entirely on gender. Their strategy proved sound, as the continued failure to pass the Equal Rights Amendment demonstrates.
In response to the laughter elicited by Rep. Smith’s proposal, Rep. Martha Griffiths scolded the floor. She said, “if there had been any necessity to have pointed out that women were a second-class sex, the laughter would have proved it.” Members of Congress fell quiet. Her words continue to resonate today.
This article is intended as a general discussion of these issues and reflects the opinions of the writer only. It is not to be considered legal advice or relied upon. Susanna Korkeakivi is a Legal Assistant at Reavis Page Jump LLP supporting the firm’s media, entertainment and employment practices.
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