October 19, 2020 HISTORY AND THE LAW

When the Rights of Women Truly Began

Thomas J. Shaw

With U.S. Sen. Kamala Harris nominated as a candidate for vice president of the United States, it’s worth understanding where the long road to emancipation for American women began.

The springboard was that oldest of male occupations, war, which by its very nature is disruptive to the settled order. In World War I, women finally found the necessary catalyst to overcome male resistance and push across the line the changes for which they’d long fought.

In the United States and Great Britain, it was only in the mid to later 19th century that women began to organize sufficiently to demand revisions to laws affecting them. For the rest of that century and the first decade of the 20th, despite the significant efforts of many women, the needed legal modifications hadn’t been enacted. This was soon to change.

In World War I, despite the dangers, women took on military and civilian work usually done by men, often in addition to their own duties at home. The wages paid to women became a legal issue. Long-pursued goals of women’s suffrage and limits on alcohol had built to a climax. Millions of soldiers died, leaving a large gender imbalance. These forces all combined like big waves crashing together onto the unsettled shores of an ebbing war.

Women’s Wartime Roles

The diverse work women undertook during the war included serving as nurses, doctors, ambulance drivers, aid workers, linguists, and telephone operators in the conflict areas of Europe. Those performing that work ranged from young women and society matrons to two-time Nobel laureate Marie Curie, who invented a mobile X-ray unit and then visited frontline hospitals, examined patients, and taught others to use X-rays to find shrapnel and bullets in wounded soldiers.

Serving in battle zones was hazardous even to those nominally protected; many nurses were killed or wounded. U.S. Army nurse Beatrice MacDonald was wounded in a frontline casualty clearing station, losing her right eye. Despite her injury, she refused to evacuate, continuing to serve during the war. She became the first woman to receive the Purple Heart, to be followed in this century by former pilot and current U.S. Sen. Tammy Duckworth.

Nurses were exposed to other dangers, such as the Spanish flu pandemic, which heavily hit the military camps, and to being captured. British nurse Edith Cavell, who treated men of all nations in Belgium, was tried and convicted for treason by the German army for helping injured soldiers escape. Despite the Geneva Convention requiring that medical personnel be “protected and respected” and protests from the U.S. government, she was executed.

American women physicians also served near the front, setting up hospital units for soldiers injured or gassed during battle and for war refugees. An all-female hospital unit, led by Dr. Caroline Sandford Finley, was part of the Women’s Oversea Hospitals U.S.A. and funded by the National American Woman Suffrage Association. Not allowed into the American military, she served under the French, where her hospital was subjected to repeated aerial bombings. She was awarded the French Croix de Guerre (“She is distinguished…for her courage and scorn of danger during the bombardment of the hospital”) and a British MBE for helping British ex-POWs with influenza.

The American Expeditionary Force in Europe formed the Signal Corps Female Telephone Operators Unit, popularly nicknamed the “Hello Girls,” to provide bilingual French and English telephone exchange services. Recruited under Executive Order 2617 and subject to the Code of Military Justice, the first group, led by Grace Banker, was located near the front. They had to memorize frequently changing code words while ensuring precision in communications since Army commanders and artillery units relied heavily on the operators’ translations and timings when issuing orders.

Women also served in the navy. The Naval Act of 1916 specified a reserve force including coastal defense. This force allowed any American citizen to join up who “may be capable of performing special useful service in the Navy.” Under this authority, recruiters could enlist women to the role of yeoman (F). More than 11,000 American women volunteered, including Isabelle Villiers, who served first as a yeoman and then as a Hello Girl in France.

Back home, women worked on farms, in offices, in shops, and in manufacturing.

In Britain, under the National Service scheme, tens of thousands of women volunteered for the Women’s Land Army and Women’s Army Auxiliary Corp to do jobs usually done by men. In factories, women built munitions while exposed to the constant danger of explosions. They also handled toxic elements that colored their skin yellow, earning them the nickname “canary girls.”

Beyond their usual work of caring for their families, volunteering, and keeping up morale, other burdens of war fell on American women. The Food and Fuel Control Act of 1917, nicknamed the “Lever” Act, created the Food Administration. Its efforts targeted women at home, asking them to voluntarily commit to conserving food and to increasing supply by growing “Victory gardens” and observing “wheatless Mondays” and “meatless Tuesdays.”

Voting and Drinking

During the war, long-established women’s advocacy organizations stopped actively pushing their main causes to support the war effort. This patriotic turn, along with their wartime roles, was finally rewarded with the passing of legislation giving women the right to vote. This right had already existed in states in the Western United States and in Australia and New Zealand before the war, where women were eagerly sought to help settle the frontiers.

The Representation of the People Act passed the British Parliament in 1918, although it applied only to women over 30 to prevent women from becoming a majority of all voters. The 19th Amendment, started by a U.S. Congressional resolution in 1917 pushed by its only female member, Jeannette Rankin, finally passed Congress in 1919 and was ratified in 1920.

Another long-running campaign spearheaded by American women was that for temperance. Initially promoted by women’s groups to limit the harmful effects of alcohol consumption on families and violence against women, it later came to include the fight against political corruption epitomized by saloons. So it was the Anti Saloon League that led the final legal push, just when the usually vocal German American brewers lobby had lost power during the war.

Congress banned alcohol around military bases and passed a Wartime Prohibition Act. In between, with the added wartime need to conserve grain, a Congressional resolution led to ratification of the 18th Amendment in early 1919 and the Volstead Act in October. Mabel Walker Willebrandt, a public defender of women during the war, was appointed assistant attorney general and prosecuted dozens of Prohibition cases before the U.S. Supreme Court.

An Adequate Wage

In Britain, many believed the government in 1915 had committed to paying women doing war work the same hourly rate as men. But a 1919 government commission on women in industry explained that equal pay was intended only for piece-rate work, not for semi-skilled hourly work. Equal pay was for equal value (of output). A small victory came when women transport workers went on strike in 1918 and received the same war bonus as men.

That same year, the U.S. government passed for the District of Columbia “An Act To protect the lives and health and morals of women…” This created a minimum-wage board tasked with finding out “what wages are inadequate to supply the necessary cost of living to any such women workers to maintain them in good health and to protect their morals.” The board could set a minimum wage for women if such wages were found to be currently inadequate.

This statute was challenged and came before the U.S. Supreme Court in 1923, in Adkins v. Children’s Hospital. The appellees were a hospital that employed many women and a hotel elevator operator named Willie Lyons, who had lost her job when the minimum-wage board decreed that her position should be paid more. She claimed it was the best wage she could get in a moral working environment and wished for her job back.

The appellant minimum-wage board was represented by future Supreme Court Associate Justice Felix Frankfurter but faced a newly conservative court. The court ruled 5-3 (Justice Louis Brandeis had recused himself because his daughter worked for the appellant) to overturn the statute as unconstitutional because it interfered with the 5th Amendment’s liberty right to contract. The court looked for possible exceptions to that general rule and found none. Instead, it observed the recent legal gains for women, stating:

“In view of the great—not to say revolutionary—changes which have taken place since that utterance [concerning men’s control over women], in the contractual, political and civil status of women, culminating in the Nineteenth Amendment, it is not unreasonable to say that these differences have now come almost, if not quite, to the vanishing point.”

Justice Oliver Wendell Holmes Jr., in dissent, said:

“It will need more than the Nineteenth Amendment to convince me that there are no differences between men and women, or that legislation cannot take those differences into account.”

This ruling wasn’t overturned until the court’s 1937 decision in West Coast Hotel v. Parrish.

Resettling Surplus Women

After the war, women could look for jobs in a shrinking post-war economy or think about starting a family. The latter assumed there would be sufficient men available. In Britain, this was a problem, with the 1911 census showing that women already outnumbered men. To make matters worse, more than 600,000 British soldiers had died during the war.

What was to be done with all these “surplus” women, who would lose their jobs to returning soldiers and economic recession and could not find male partners? This problem melded with another issue facing the government in London: how to keep the British dominions of Australia, Canada, and New Zealand sufficiently British?

The solution proposed was to match up these women with the dominions’ ongoing need for British domestic servants. Everyone would win. Britain wouldn’t have to support unemployed women, and wages would rise for those who remained. It would also ease England’s housing crunch; its population density was 700 people per square mile, while Australia and Canada were sparsely populated, with only 2 or 3 people per square mile.

The upper and middle classes in Australia, Canada, and New Zealand—always looking for domestic workers who spoke their language, understood their beliefs, and knew their culinary tastes—would welcome these British women. And in all three dominions, per the 1911 census, men outnumbered women and had suffered fewer deaths during the war.

The women gained employment unavailable at home and now were in an environment where the gender ratio was in their favor. And the British government strengthened imperial security and trading bonds. More loyal British women at the empire’s further reaches would export British culture, buy British goods, and produce British-facing children.

Women’s emigration had long been handled by private charitable organizations, which joined to form the Society for the Oversea Settlement of British Women. The Empire Settlement Act of 1922 provided monies for the settlement of women under various schemes arranged by the government, SOSBW, and the dominions. These helped British emigrants using loans and assisted passage fares, along with guaranteed jobs upon arrival.

This war brought first successes to many goals that women, collectively and individually, had long sought. The right to work in jobs reserved for men, including dangerous roles supporting their country. The right to make a minimum wage and be paid equally to men. The right to vote in elections and to be less exposed to the abuses of alcohol. And the ability to find work and have a family, even if it meant leaving one’s homeland. The hard and sometimes dangerous labors of women during this war had only just begun to pay off.

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Thomas J. Shaw, CPA, CIPP/EU, CIPP/US, CISM, CRISC, ECMM, ERMP, CISA, CGEIT, CCSK, is an EU-based lawyer and the author of 10 books, including: World War II Law and Lawyers, World War I Law and Lawyers, and Revolutionary War Law and Lawyers.