What Gender Neutral Standards?

Looking-ForwardGender-neutral standards. That’s the rub. I got to thinking about that phrase reading about the Pentagon’s decision to rescind the ban barring women from combat and the pledge by General Cone to apply gender-neutral physical fitness tests.

It strikes me that rescinding the combat ban is just the latest dismantling of restrictions on women ostensibly erected to protect “the fairer sex’s” natural proclivities, but in effect operating to keep women from achieving the socio-econ0omic power they may aspire to achieve. Our society has been the poorer for those restrictions. We’ve been here before. Are we still here?

Some argue the ban against women in combat should stay in place because of the physical rigors of the job, the specter of sexual harassment (or false charges of sexual harassment) and the likely torture, including rape, and death of women prisoners of war. All of these arguments fall flat when it is considered that women make up almost 15% of the 1.4 million service people on active military status, are already suffering sexual assault while in uniform, and are already on battlefields dying and being tortured before they die. (And men are dying and being tortured before they die as well—is their life worth less?)

Perhaps the Joint Chiefs of Staff made the recommendation to Mr. Panetta in light of these realities. Perhaps the lawsuit filed by two female Army Reservists last May asserting that the policy based solely on gender violated the Equal Protection Clause of the United States Constitution also held some sway.

If this sounds familiar, maybe you are thinking of the analogous case of women fire-fighters. Since the early days of our country, women served as fire brigade volunteers. Their involvement increased during World War II while the men were in combat elsewhere; volunteer female firefighters fought fires valiantly and died in service. Yet it wasn’t until nearly a decade after the Civil Rights Act of 1964 made it illegal to prevent women from applying to be paid as fire fighters that women made—no forced—their way into the fire stations. There were arguments about the demoralizing effect on all-male teams and the sexual tension of shared firehouses. But mostly there were claims the job was too physical for women. And what followed were challenges to the fairness of the physical fitness tests. Women argued that the tests were made unreasonably difficult and were unrelated to the requirements of the job. Men argued that the court-ordered revised physical fitness tests were “soft” and would put them and citizens in danger. Has it happened? Not that I have heard.

And where are gender-neutral standards in the legal profession? We also suffered through the historically familiar attitude that women were not suitable for lawyering despite their law degree and bar admittance. Retired United States Supreme Court Justice Sandra Day O’Connor is one of the more famous examples of young female lawyers who could not find a legal job because of her gender, and there are many more. By the mid-1970s, women lawyers became more common, although in my early years as a practitioner, I still received comments about how women were not as suitable as men for the rough and tumble requirements of litigation. So perhaps the tallest barriers to entry have been scaled, but what about advancement?

It appears that different standards are being applied to men and women in terms of retention and promotion. As one data point, consider the findings of the 7th annual survey by the National Association of Women Lawyers released last fall. In the only national survey on retention and promotion of women in the largest law firms in the U.S., the survey showed that female equity partners earn 89% of what their male counterparts make. The gap between the male and female compensation at the equity partner level did not correlate with male/female difference in billable hours, total hours, or books of business. So exactly what standards are being applied? They aren’t gender-neutral.

When will “those in power” ever quit being threatened by meritocracy and learn that engaging the diversity of our society in all its forms cannot help but make us all better?

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