NOTE: This article originally appeared on The Lawyer’s Daily website published by LexisNexis Canada Inc. on January 29, 2019, with the title “What we can learn from On the Basis of Sex”
There’s one scene in On the Basis of Sex, the new biopic about Justice Ruth Bader Ginsburg, that I can’t get out of my head. It shows a younger RBG (as she’s now affectionately known), then a law professor at Rutgers, purposefully striding through a crowd of anti-Vietnam War protestors to get to her lecture.
This scene (like much of the film, to be honest) was a rather obvious way to frame the essential tension about RBG: she might seem like a radical feminist in the context of the Supreme Court of the United States, but she’s a bit … conservative. (Lace collars, anyone?)
Admittedly, I judged RBG in this scene. THIS is the woman we’ve elevated as a feminist hero? Why didn’t she stop, raise a fist, join a chant? It was the Vietnam War, for goodness’s sake.
And yet, amidst my judging, I recognized myself in the way she scurried into the safety of the law school. I remembered how my opposition to the Iraq War (which began when I was in undergrad) manifested itself in heated debates in the atrium of the university library – not on the streets. The Women’s March in 2017 was my first real “protest.” As a lawyer, I’ve generally believed I could do the most good by turning words into arguments, and using whatever platform I have to make the case for feminism. But is that enough?
On the Basis of Sex seems to think so, but I’m not so sure.
The film sets up RBG as an outsider to the feminist movement of the 1960s. In yet another on-the-nose scene, her daughter Jane brings up Gloria Steinem to antagonize her mother in an argument – Steinem as the more radical counterpoint to Ginsburg’s slow and steady approach: a megaphone versus a typewriter.
But the movie wants you to side with RBG, and believe in her methodical plans to challenge all 180+ federal statutes that discriminated on the basis of sex. As if, once she got through her “hit list,” we’d achieve equality, and therefore victory.
The case at the centre of the movie is Moritz v Commissioner of Internal Revenue, where Ginsburg (along with her husband Martin Ginsburg, and Mel Wulf from the American Civil Liberties Union) represented a man who was denied a caregiver’s tax deduction (he needed someone to help look after his elderly mother, who lived with him, while he was travelling for his sales job). The Tax Code provided that the deduction was only available to women, widowers, and husbands whose wives were incapacitated or institutionalized (the people Congress assumed might have caregiving responsibilities). The 10th Circuit Court of Appeals agreed with RBG and co. that this was a discriminatory classification on the basis of sex, contrary to the due process protection in the U.S. Constitution.
This case was decided in 1972, a couple of months before the United States Supreme Court released its decision in Roe v Wade. It made me wonder what RBG was doing representing a man in a tax case when women were fighting for the right to control their own bodies. And, according to a recent New Yorker article, the ACLU then asked Ginsburg to take cases defending Roe, and she declined, in favour of continuing with more sex discrimination cases (as if limitations on abortion are *not* sex discrimination?). But, while Ginsburg has criticized the court’s reasoning in Roe, she has come to vigorously defend the right to abortion, and wrote a powerful concurring opinion in the court’s 2016 decision in Whole Woman’s Health v Hellerstedt.
But we know that later that year, Trump was elected, and Brett Kavanaugh now sits with Ruth Bader Ginsburg on the Supreme Court.
The defeatist would say that RBG has won some tough battles but ultimately lost the war. But On the Basis of Sex is not defeatist. Spoiler alert: it ends with the real RBG walking up the steps of the Supreme Court as the music swells. The message: look how much one woman can do. Look how much this woman has done. Ruth Bader Ginsburg alone is not responsible for smashing the patriarchy, but she has made more cracks than most (and she’s still hearing cases so there’s more to come!).
Now, in 2019, many feminists are turning their admiration to another prominent woman known by her initials: Alexandria Ocasio-Cortez (aka AOC), recently elected as the youngest-ever Congresswoman in the U.S. House of Representatives. On her first day of orientation, AOC joined a sit-in by climate change activists at Nancy Pelosi’s office. She didn’t walk through the protest; she was part of it. And she used the sit-in as a platform to demand a Green “New Deal,” a policy proposal that is getting real traction on Capitol Hill.
Protests alone are not the answer, of course – they need to be backed up with policy and law reform. Which is why it’s so exciting to watch AOC combine her activist energy with substantive proposals, and to see folks inspired to take action in response.
This is not to knock the feminists doing the quiet, methodical work of interpreting legislation and crafting arguments behind the scenes (and yes, I count myself in this category). The feminist movement of 2019 can benefit from all kinds of skill sets and approaches, as long as we share the common goal of true equality. RBG’s story has lit a spark for many feminist lawyers, but it’s up to us to keep the fire going.
Jennifer Taylor is a lawyer at Stewart McKelvey in Halifax, Nova Scotia, and a member at large of the CBA Women Lawyers Forum (among other feminist activities). She can be found on Twitter @jennlmtaylor. The views expressed here are her own.