WHEN I WAS a child, my home was my courtroom. My mom was both judge and plaintiff telling me it’s bedtime, and I, the defendant, argued I should be allowed to stay up late. Often, she’d rule in my favor.
We both always knew I’d be a lawyer. Perhaps that’s because nobody told me to expect I couldn’t. My single mom, who worked full-time and still managed to bring me to dance lessons and to help me with science projects, never said that being a woman meant I couldn’t do it on my own. My childhood hero, Laura Ingalls Wilder, never said that independence and self-reliance are traits reserved for men.
But these are the messages paternalists send with their support of California’s “Woman Quota.” This first-of-its-kind law requires publicly traded corporations to hire a minimum number of women onto their boards of directors. For now, the quota requires just one female board member, but by the end of 2021, the quota increases based on the board’s size.
Pacific Legal Foundation launched a lawsuit to remove the quota. As the lead attorney on the case, I’ve received mixed reactions. I, and PLF, argue that the quota is not only unconstitutional, but also deeply patronizing to women. Vox characterized the lawsuit as primarily concerned with discrimination against men, a sentiment echoed by my fellow participants in a BBC podcast on the topic.
But the point is not that quotas force people to discriminate against men (although they do that, too). It’s that, ultimately, they’re destructive to women.
Boardroom quotas create the impression that women can’t make it to the boardroom without government help, and they relegate smart, capable women to mere “quota hires.” Evidence suggests women don’t even need this “help” in the first place; in 2019, female representation on corporate boards increased for the seventh straight quarter in a row, and overall, around 40% of new board hires at the top 3,000 corporations were women.
Individualists like myself view sex-based hiring as inherently pernicious. Because quotas make characteristics like race or sex the defining factor in hiring decisions, they commit the same injustice as traditional discrimination. That injustice cannot be excused merely because it’s intended to “help” rather than to harm.
After all, the distinction between paternalism and condescension is blurry. Historically, the government has sought to “help” women based on stereotypes about the purported “way women are.” Maximum hours legislation for women was once defended on the basis that women couldn’t stand up as long as men and didn’t have the same attention span. All-female nursing schools were defended as places where women didn’t have to feel self-conscious about being smart in front of men. Laws allowing women to opt out of jury duty were based on the assumption that women were the family caregivers.
Boardroom quotas create the impression that women can’t make it to the boardroom without government help, and they relegate smart, capable women to mere “quota hires.”
Through today’s lens, these laws are palpably condescending. But they weren’t at the time.
Some laws aren’t so obviously condescending. Take Oklahoma’s former law that granted women a younger drinking age than men. After a few frat boys challenged the law in court, the state produced studies and statistics purporting to show that women have better judgment than men. The law was intended as a compliment of sorts, but feminist icon (and future Supreme Court Justice) Ruth Bader Ginsburg wrote a scathing brief in opposition on behalf of the ACLU. Ginsburg argued that rather than complimenting women, the law perpetuated the stereotype of women as “men’s quiescent companions.” In fact, she argued, it pigeonholed both women and men, thereby “retard[ing] progress toward equal[-ity.]” Sure, Oklahoma intended to compliment women, but what is at one time seen as “gallantry,” she wrote, is often later recognized as “Victorian condescension.”
Paternalists seem to think that only they know what women, writ large, need or are supposed to do—from how much paid maternity leave women should have, to exactly how college women should signal consent to romantic relationships. Women policing other women is often harmful. Women enshrining their preferences for women into law is catastrophic.
What is at one time seen as “gallantry” is often later recognized as “Victorian condescension.”
I earned my job and I take great pride in the effort that got me here. I want that pride for other women too—whether they aim to be great lawyers, board members, mothers, or wives. But pride requires choice.
Individualists assume no one knows what’s best for women except for the individual women themselves, which makes it a futile task to try to legislate for women’s collective “benefit.” Individualists don’t seek special treatment based on their sex; they ask that people consider them as individuals whose worth is rooted in individual traits, like aptitude and character. And individualists understand that the best way to help women is to allow them to exist free of sex-based discrimination—including the “good” kind.
