August 26, 2020
By Christina Sandefur

Nearly 50 years ago, Congress designated August 26th as Women’s Equality Day, in honor of the certification of the 19th Amendment, guaranteeing women the right to vote. Every president from Richard Nixon to Donald Trump has issued a Women’s Equality Day proclamation recognizing the work of the suffragettes and recommitting to ensuring women’s equality.

Women’s equality under the law is cause for celebration, and the continued fight for women’s freedom to live their lives as they see fit is worthy of pursuit. Unfortunately, though, politicians (many of them male) have forsaken true legal equality for misguided policies that patronize women. As we commemorate Women’s Equality Day, it’s important to keep the following principles—which represent true equality under the law—in mind:

1. Women should not be defined by their sex—but that requires treating women as individuals, not as a collective.

Efforts by male-dominated governments to close the so-called gender pay gap through top-down, one-size-fits-all mandates—such as sex-based employment quotas, paid parental leave, or minimum wages—are condescending and deeply offensive. They treat women as incapable of negotiating the terms of their employment—and as victims of the patriarchy if they should dare to choose flexibility or other benefits over higher pay.

For starters, the gender pay gap statistic—which shows that women are paid only 78 cents on the man’s dollar—is deeply misleading. When one takes into account a number of factors based on individual preferences, such as education, choice of profession, level of experience, and desire for flexibility, women are actually paid 95 cents on the dollar—and there’s no evidence that the remaining 5 percent gap reflects discrimination. Studies show that, on the whole, men place a high premium on a larger paycheck, while women value flexibility at work more. Perhaps that’s why the number of women-owned businesses has increased 3000% since 1972, and women are increasingly choosing to work in the “gig” economy.

Even the federal government recognized that “protective” legislation that treats women as a collective is sexist and unlawful. Nearly 50 years ago, the Equal Employment Opportunity Commission declared that state laws that “do not take into account the capacities, preferences, and abilities of individual females . . . conflict with and are superseded by title VII of the Civil Rights Act of 1964.

2. Women are often harmed by laws that claim to “protect” them.

Efforts to “protect” women in the workforce often backfire and harm women—and all workers. In the early 20th century, states imposed minimum wage laws on women workers, purporting to benefit women by ensuring higher pay. But rather than giving women greater opportunities, those laws put many of them out of work altogether. More recently, a Harvard Business Review study showed a law in Denmark aimed at reducing the gender “pay gap” actually incentivized businesses to move away from performance-based pay, meaning individual women were less likely to be rewarded for good work. And to the extent that the “pay gap” decreased, it wasn’t because women made more money, but because men made less.

And government-mandated paid leave laws—intended to help new mothers—have been shown to exacerbate gender inequality. And they are often cost-prohibitive for businesses, resulting in shuttered companies and layoffs that ultimately leave women unemployed.

3. Women should not have special privileges under the law—they should have equality.

The justifications behind many of these patronizing government policies were once rejected by egalitarian feminist groups who opposed state laws “protecting” women from working too much or making too little money.

Indeed, the National Woman’s Party, the original champion of the Equal Rights Amendment, wholeheartedly rejected “protective” legislation that singled women out for what they considered to be restrictive and discriminatory treatment. At that time, California law prohibited businesses from employing women over 8 hours a day or 48 hours a week, or hiring women for jobs that required them to carry objects weighing 10 pounds or more up stairways rising more than 5 feet—supposedly to “protect” them. Those laws, NWP argued, were actually “used to deny women the right to earn their own livelihoods and to support their dependents.” Today, laws that dictate how many women should serve on a company’s board, or whether a woman should value flexibility over higher pay, ignore the preferences of women to pursue the career paths of their choice, supplanting those decisions with the economic choices that bureaucrats think women should make.

Women are entitled to equal protection under the law. But expecting government to create social equality for women will backfire. As 20th century American journalist and feminist Suzanne LaFollette wrote, “women who rely upon [government] guarantees to protect them against prejudice and discrimination are leaning on a broken reed.” Special favors from government only exacerbate inequality and sexism. Women cannot be seen as equals by society, LaFollette believed, until they are treated by the law “not as women but as human beings.”

4. Women owe much of the equality, freedom, and choice they enjoy today to capitalism. 

Marketplace freedom has spurred innovation that has brought more opportunity for women. For example, economic innovations have freed women from tedious housework. Women once spent a day each week washing clothes. Now, thanks to market innovations, housework is no longer “women’s work,” and Americans spend fewer than two hours per week on laundry. “The advent of the modern housewife,” the Foundation for Economic Education’s B.K. Marcus observed, “was the result of greater wealth and leisure, as was women’s growing freedom to accept or reject the role.”

That trend continues today, as the face of the sharing economy is increasingly female—and feeling empowered. Women working in the gig economy overwhelmingly believe they can get equal pay for equal work. And women are gaining grounds in more traditional office roles, too. The Fortune 500 has more female CEOs than ever before, and Bose just appointed its first female CEO.

“The free market,” Independent Women’s Forum President Carrie Lukas points out, “does a much better job at creating opportunities for women than big government does. This not only means better jobs and better pay for women, but also the chance to craft the lives they actually want.”

5. Women do not need Big Brother to “help” us—we simply need him to get out of our way.

It’s incredibly hypocritical that the same politicians who claim to embrace equality for women perpetuate a system of laws that disproportionately keep women from pursuing opportunity. Instead of pushing one-size-fits-all, top-down agendas, lawmakers can empower women by eliminating unnecessary and overreaching laws.

Government at all levels forces people to get permission to practice a trade or start a business. Eliminating overreaching occupational licensing laws would make it easier for women to pursue the job of their choice. And getting rid of local rules that make it difficult or even a crime for people to work from home would remove senseless barriers to work that have fallen especially hard on working moms.

“If we pass laws that force our values on others,” the Association of Libertarian Feminists noted 45 years ago, “we are no better than men who have forced their values on us through legislation. We merely substitute our tyranny for the tyranny of men.” Breaking down unnecessary government barriers to work empowers women to pursue the careers that they desire. Some women prefer flexible working conditions and are willing to trade that for higher wages. Others are happy to keep regular office hours in exchange for career growth. Women are not homogenous—and one-size-fits-all government regulations prevent individuals from making the decisions that work best for them.

Christina Sandefur is the Executive Vice President at the Goldwater Institute.

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