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“And when I meet Thomas Jefferson . . . I’m ‘a compel him to include women in the sequel!” – Angelica Schuyler[1]
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The nation is beginning to reckon with darker features of its history. The grappling process has run the gamut from racism to LGBTQ+ discrimination. Thankfully, these conversations have extended to include systemic sexism and gender discrimination. But one wave for which this tide has not crested is that of our nation’s historic—and continued—use of the word “He” to include both genders. This came to a head recently at the Department of Veterans Affairs.
The VA and its Motto
The VA’s motto is taken from Abraham Lincoln’s incomparable Second Inaugural Address:
“With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds, to care for him who shall have borne the battle and for his widow, and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.” (emphasis added).
In 1959 when a plaque was hung on the Veterans Administration building with the italicized clause from Lincoln’s speech, a motto was born.
Over half a century later, the gender imbalance in Lincoln’s otherwise remarkable oration came to the fore. The Iraq and Afghanistan Veterans of America (“IAVA”), a non-profit whose mission is “to serve and empower our post-9/11 veterans community,” commissioned a survey of veterans to better understand gender dynamics within the veteran community.
Only 27% agreed that the public treats women veterans with respect. Less than half felt VA employees treat women veterans with respect. Seventy percent did not feel VA adequately provides women veteran program managers, the staff whose primary role is to help welcome and guide women veterans through VA care. Overall, a mere 22% rated VA’s support to women veterans as good or better.
In light of these deeply entrenched views, IAVA sent a letter to then-Secretary of Veterans Affairs, Dr. David Shulkin, asking to change the motto so as to effectuate change and ensure women veterans are respected as much as their men-counterparts. He did not. And absent further action or discussion, the debate went dormant.
Fast-forward three years: newly appointed VA Secretary Robert Wilkie announced in his Memorial Day message that the VA “will memorialize — in bronze — Lincoln’s charge to the nation in all of our VA cemeteries.” This again prompted outcry: “If women veterans are invisible in the VA motto, where else are they invisible?,” questioned Service Women’s Action Network CEO Deshauna Barbers.
To rectify the imbalance, the House Veterans’ Affairs Committee passed H.R.3010, the Honoring All Veterans Act, which would bypass the Secretary’s plenary motto authority to statutorily amend it to something more inclusive—although neither the full House nor the Senate has voted on the measure.
The VA’s imbalanced language, however, gives way to a much more pervasive language structure in need of modernization and inclusion: state and federal statutes.
Statutory Law Generally
A cursory examination of statutory law shows that the U.S. Code is rife with examples of implicit gender bias, particularly as it refers to high-ranking officials. For example, the authorizing statute for the Secretary of Defense holds: “The Secretary is the principal assistant to the President in all matters relating to the Department of Defense. Subject to the direction of the President . . . he has authority, direction, and control over the Department of Defense.” (emphasis added).[2] The State Department similarly adopts this language; the provision titled Powers and Duties of the Secretary of State reads, “He shall establish such regulations . . . and perform such other acts as he deems necessary for carrying out such provisions.” (emphasis added).
These Departments are no anomaly. In various statutes, the Secretaries of Agriculture,[3] Commerce,[4] Health and Human Services,[5] Housing and Urban Development,[6] Interior,[7] Labor,[8] and Treasury[9] as well as the Attorney General[10] are all assumed to be men. Indeed, the Code similarly assumes a masculine Department head when discussing them as a whole.[11] The President is not immune from this treatment, including in the Constitution itself;[12] neither is the Vice President[13] nor the Speaker of the House.[14] And finally, military personnel are similarly gendered in abstraction.[15] Ironically, one of the only positions that does not assume a masculine gender in its referential pronouns is the Secretary of Veterans Affairs.
It is the case that “[s]tatutes commonly use masculine pronouns generically to refer to both sexes.”[16] Dating back to the Civil War, courts—including the Supreme Court—have followed this canon of interpretation.[17] And finally, states have passed statutes that demand gendered statutes be so interpreted.[18] Therefore, as a purely, narrowly technical matter, women—in addition to those who do not conform to one of the two binary genders—are ‘represented’ in these statutes, just like they are by implication within the context of the VA. “The symbolic effect of the words, however, is precisely the problem.”[19] Terminology carries symbolic weight, and using a single masculine term belies the incredible progress women have made.
Progress in Practice
In 1929, newly elected New York Governor Franklin Delano Roosevelt appointed Frances Perkins, a career civil servant and industrial leader, to be the state’s first industrial commissioner. In that role, Perkins earned plaudits as a leader and effective champion of working people across the Empire State, helping to pass labor health and safety laws.[20] When Roosevelt was elected President, he asked Perkins to join him in Washington, D.C. and serve as the Secretary of Labor. Following some concerns about breaking this barrier—“‘Nothing like this has ever been done in the United States before,’” she told him, according to Kirstin Downey, author of a Perkins biography. “‘You know that, don’t you?’”[21]—Perkins was the lifeblood of the New Deal; she “secured unemployment insurance and pensions for the elderly and financial assistance for the infirm in the Social Security Act of 1935; and established a minimum wage, maximum work hours and the eradication of child labor in the Fair Labor Standards Act of 1938.”[22]
Perkins’ early successful tenure notwithstanding, the dam finally broke in the 1970s when America saw the next batch of women Cabinet Secretaries. The Ford Administration included our second women Cabinet member, Carla Anderson Hills, as Secretary of Housing and Urban Development. The Carter Administration, on the other hand, boasted four women secretaries, while Ronald Reagan’s and George H.W. Bush’s cabinets featured three women each. That number would grow to five, six, and eight for Presidents Clinton, W. Bush, and Obama, respectively.[23] Indeed, only three Executive departments have never been headed by a woman: Defense, Treasury, and Veterans Affairs.[24]
Cabinet secretaries are obviously not the only place that women have broken glass ceilings in government service: we’ve had women Supreme Court justices, governors, senators, congresspersons, ambassadors, and incalculable important civil servants. Pursuit of the position of commander in chief has also seen progress. One year shy of the 1964 centenary anniversary of Lincoln’s words, the first woman ran for a major party’s nomination: Republican Senator Margaret Chase Smith. A decade later, the other major party followed suit with Representative Shirley Chisolm.
The progress women have made in achieving positions of power throughout the Executive and Legislative branches, while impressive, may fall short of women’s remarkable—if uncredited—contributions to our nation’s military. As NPR reports, “Women fired cannons in the Revolutionary War, led troops in the Civil War, flew bombers in World War II and the list goes on, right up to women fighting and dying alongside Special Forces in Syria.”
Not only can women now serve in combat, but [t]he first woman to command a U.S. Navy vessel did so in 1990. In 1991, women were cleared to fly fighter jets in combat; two years later, Congress authorized women to serve on combat ships at sea. 1998 marked the first female fighter pilots to fly combat missions off of an aircraft carrier. The first women to command a U.S. Navy warship and U.S. Air Force fighter squadron were given their commands in 1998 and 2004, respectively. By 2010, women were cleared to serve aboard submarines. According to the Army, by September 2015 “437 women earned awards for valor to include two Silver Stars, three Distinguished Flying Crosses, 31 Air Medals, and 16 Bronze Stars.”[25]
That progress made across the legal and political landscape is a double-edged sword, simultaneously empowering and disheartening. Of course, all should be heartened to see women demolish gender barriers improperly constructed in the first instance. Yet, this progress is counterintuitively demoralizing insofar as this progress is met with half-measures to recognize said progress.
So why did Sec. Wilkie refuse to make the adjustment? Tradition. In a February 2019 House Veterans Affairs Committee hearing, Secretary Wilkie justified maintaining the motto: “I’m not arrogant enough to say I want to change Abraham Lincoln’s words.” He reiterated this idea in the same Memorial Day message proclaiming the VA’s plan to enshrine Lincoln’s words.
To be sure, tradition is not without merit. The English author and philosopher Gilbert Keith Chesterton once wrote that “[t]radition means giving votes to the most obscure of all classes, our ancestors. It is the democracy of the dead. Tradition refuses to submit to the small and arrogant oligarchy of those who merely happen to be walking about.”[26] To wit, one need only shout “tradition!” to hear Tevye from Fiddler on the Roof explain that tradition is “how we’ve kept our balance for many, many years [to] live in simple peace and harmony.”[27]
But the justification of tradition no longer holds water—if it ever did. For a society that claims to espouse principles of equality—e.g. the inscription on the West Portico of the Supreme Court Building reads, “Equal Justice Under Law”—it is abhorrent to leave in place gendered language which serves only to reinforce old stereotypes and entrench long-expired thinking. Setting aside our “lodestars” of equality,[28] the aforementioned laundry list of women’s service to our nation alone is well worthy of equal recognition in our nation’s Code as well as its mottos. That the Secretary cries crocodile tears for tradition is insulting: “Sometimes tradition and habit are just that, comfortable excuses to leave things be, even when they are unjust and unworthy.”[29] Said more plainly: “Immorality sanctified by tradition is still immorality.”[30]
Moreover, that the Secretary cloaks this inequity in deference to Lincoln bespeaks his failure to grasp the growth our nation has undergone in the over 150 years since the Address. To be sure, none advocating a modification of the VA’s motto revel in rewriting Lincoln’s words. None suggests one of our most treasured commanders in chief was not a patriot nor well-intentioned. Instead, they would say that his words simply reflected “the best wisdom of [his] time, but it’s just plain wrong by any modern standard.”[31]
Thankfully, our nation’s laws and customs alike have begun to unravel and uproot sexism and classism. And “[o]nce loosed, the idea of Equality is not easily cabined.”[32] We cannot allow it to be barred from our nation’s symbols, laws, and creeds.
Note from the Author: Russell Spivak, J.D., Harvard Law School, 2017; B.S., Massachusetts Institute of Technology, 2013. I dedicate this article to the many women in my life who made me the person I am today. As well, my deepest gratitude goes out to the excellent editors of the Harvard Journal of Law and Gender, without whom this article would not be possible.
[1] Lin-Manuel Miranda, Hamilton: An American Musical (2015).
[2] See also 22 U.S.C. § 2651a (the Under Secretary for Arms Control and International Security “may attend and participate in meetings of the National Security Council in his role as Senior Advisor to the President and the Secretary of State on Arms Control and Nonproliferation Matters.” (emphasis added)).
[3] See, e.g., 16 U.S.C. § 460gg-6 (“as he deems necessary”).
[4] See, e.g., 13 U.S.C. § 4 (“The Secretary shall perform the functions and duties imposed upon him by this title, may issue such rules and regulations as he deems necessary”).
[5] See, e.g., 21 U.S.C. § 379e (“If . . . the Secretary finds that the data before him”).
[6] See, e.g., 12 U.S.C. § 1748b (“The Secretary may, in his discretion”).
[7] See, e.g., 16 U.S.C. § 167a (“as he deems necessary”).
[8] See, e.g., 29 U.S.C. § 482 (“if he finds”).
[9] See, e.g., 42 U.S.C. § 291j-6 (“to enable him to discharge his responsibilities”).
[10] See, e.g., 28 U.S.C. § 510 (“The Attorney General may from time to time make such provisions as he considers appropriate”).
[11] See, e.g., 28 U.S.C. § 512 (“The head of an executive department may require the opinion of the Attorney General on questions of law arising in the administration of his department.”).
[12] See U.S. Const. art. II, § 1, cl. 7 (“The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.”).
[13] See, e.g., 3 U.S.C. § 111 (“There shall be paid to the Vice President in equal monthly installments an expense allowance of $20,000 per annum to assist in defraying expenses relating to or resulting from the discharge of his official duties, for which no accounting, other than for income tax purposes, shall be made by him.”).
[14] See, e.g., 3 U.S.C. § 19 (“If . . . there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.”).
[15] See, e.g., 10 U.S.C. § 938 (“Any member of the armed forces who believes himself wronged by his commanding officer”).
[16] 2A Norman Singer & Shambie Singer, Sutherland statutory construction § 47:32 (7th ed.) (Gender); see also 3B Norman Singer & Shambie Singer, Sutherland statutory construction § 74:1 (8th ed.) (Poverty Relief) (“A masculine gender reference usually includes females, and a feminine gender reference usually excludes males, and a statute that contains both masculine and feminine gender references ordinarily uses each in its familiar, common sense”); 1A Norman Singer & Shambie Singer, Sutherland statutory construction § 21:2 (7th ed.) (Length of Sections) (“Exceptions excepted, let the masculine singular comprehend both genders and numbers.”).
[17] See Silver v. Ladd, 74 U.S. 219, 226 (1868).
[18] See, e.g., Iowa Code Ann. § 4.1 (“Words of one gender include the other genders.”); Miss. Code Ann. § 43-21-105(w) (Rev. 2015) (“the masculine [includes] the feminine when consistent with the intent of this chapter.”); Ark. Code Ann. § 11-10-224 (“Throughout this chapter, the pronoun ‘he’ is deemed to include the masculine gender, the feminine gender, and, in the case of employers who are not persons, the neuter gender.”).
[19] Movsesian v. Victoria Versicherung AG, 578 F.3d 1052, 1061 (9th Cir. 2009), reh’g granted, opinion withdrawn, 629 F.3d 901 (9th Cir. 2010), on reh’g en banc, 670 F.3d 1067 (9th Cir. 2012).
[20] Alana Samuels, Frances Perkins: 100 Women of the Year, Time (Mar. 5, 2020), https://time.com/5792783/frances-perkins-100-women-of-the-year/.
[21] Id.
[22] Id.
[23] This list considers only cabinet secretaries. There are other members of the Cabinet whose membership is not accounted for in this brief article, including but not limited to former U.S. Trade Representatives Charlene Barshefsky (under President Clinton) and Carla Anderson Hills (under President H.W. Bush).
[24] Of course, President-Elect Joe Biden’s nomination of Janet Yellen to serve as Treasury Secretary would address one third of this national shortcoming. See Janet Yellen, Biden-Harris Transition, https://buildbackbetter.gov/nominees-and-appointees/janet-yellen/ (last accessed Dec. 29, 2020).
[25] Russell Spivak & Adam Aliano, Should Women Register for Selective Service? The Legacy of Rostker v. Goldberg, Lawfare Blog (Dec. 23, 2016), https://www.lawfareblog.com/should-women-register-selective-service-legacy-rostker-v-goldberg (embedded links disabled).
[26] Gilbert Keith Chesterton, Orthodoxy, ch.4 (1908).
[27] Fiddler on the Roof (United Artists 1971) (“without our traditions, our lives would be as shaky as … as … a fiddler on the roof!”)
[28] Romer v. Evans, 517 U.S. 620, 623 (1996) (Kennedy, J.) (citing Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J. dissenting) (“the Constitution ‘neither knows nor tolerates classes among citizens’”).
[29] Matthew Scully, Dominion: The Power of Man, the Suffering of Animals, and the Call to Mercy, 314 (2002).
[30] Bernard Rollin, Animal Rights and Human Morality 169 (2006).
[31] The West Wing, Take This Sabbath Day (NBC television broadcast Feb. 9, 2000).
[32] Archibald Cox, The Supreme Court, 1965 Term—Foreword: Constitutional Adjudication and the Promotion of Human Rights, 90 Harv. L. Rev. 91, 91 (1966).