An AI rendering of the Furies after they lost their role as Goddesses of Vengeance, Retribution, and Moral Order and just before they become “The Kindly Ones” (Eumenides).

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“But roommates are just one of the myriad things over which inmates have no control. While violence is the main concern in a male prison, at Framingham it is the creation of intimacy that most worries the authorities. For this reason, the population is kept fluid. Women are not allowed, officially, to hold the same job for more than six months, and roommates are routinely moved around.” A World Apart: Women, Prison, and Life Behind Bars, Cristina Rathbone, Random House, 2006.

I don’t know if rotating women through jobs every six months is still the practice 20 years later in MCI-Framingham. But I do know that the corrections officials do not have be concerned anymore about intimacy among the women in Framingham prison. The introduction of men who identify as women has destroyed any opportunity to benefit from the rehabilitative effect of an all-female prison.

Trans-identifying men in women’s prison present, even in Massachusetts, a direct threat to women inmate’s safety and privacy. And their presence disrupts any chance that the women will form a supportive community. There is so much research on the benefits of women and girls having space together without men, that it begs the question: Did anyone, at anytime, consider women and girls?

Women come to prison with a history of abuse. Sexual abuse, physical abuse, drug abuse. In an all-woman prison, there used to be programs specifically for women. Perhaps group therapy for rape survivors? Women do not go if men are in the group.

In Kat Highsmith’s recent Substack, Trans Kids and Dark Family Histories, How the Past Shapes Our Present, Kat discusses the fact that actress Cynthia Nixon, who has a trans-identifying son, had a great-great-great grandmother, Martha Curnatt, who was imprisoned with 800 male criminals because there were no separate women’s prisons. Martha was sentenced to five years for manslaughter after she killed her husband in Missouri in July 1843. He had brutally abused her for years. Martha gave birth in prison, over one year after her husband’s death, impregnated by a man, guard or inmate.

Women were housed with men in prison until the reform movement began in the early 1800’s. Generally, it was believed that men could be rehabilitated with discipline and work. Women, on the other hand, could not be rehabilitated because a convicted women had stepped outside of her role as a good woman. She was considered morally unsound. Cristina Rathbone observed that women prisoners were:

“Adulterers and “consorters with malevolent spirits” in the eighteenth century, drunks and prostitutes in the nineteenth, drug-addicted single mothers in the twentieth. Perhaps these were all witches, still.”

Despite the popular narrative that trans-identifying men must be in a women’s prison for their own safety, the facts on the ground show that women are getting pregnant in prison again. Raped. Under duress. Maybe some are consensual.

One trans-identifying inmate with a record for violence, Tremain Carroll, has been charged with raping two women inmates. He was finally transferred to a men’s facility and is awaiting trial on the rape charges. He has fired at least five court appointed attorneys causing delay after delay after delay. In the meantime, the judge has ordered that Carroll is to be referred to as “she” or “her” in the courtroom.

As N.K. Stade wrote in The Hill,

“In this case, to call Carroll “she” would deprive the people of California of justice. “She” refers to a female, and no female could commit the crime of which Carroll is accused, which involves vaginal penetration by a penis. It would also be an affront to his female accusers, who know full well the sex of their attacker.”

When I was working as an assistant district attorney, I worked with several eyewitnesses whose testimony had been considered tainted and so they had to tailor their testimony to avoid the pieces that the court considered unreliable. In a desperate attempt to locate missing teenage Mary Lou Arruda, the investigators had attempted to hypnotize the witnesses.

It was hard enough to tell witnesses that the truth they remembered could not be spoken in full—that the court would permit some answers and forbid others. Some believed obedience to the judge’s order would make liars of them under oath; others felt their integrity itself had been put on trial. I think of them when I think of the rape victims in Carroll’s case. They have already been violated. Now the court instructs them to submit to a second violation: to deny what was done to them, to name the assailant as the law commands rather than as reality requires, and to say, impossibly, “She raped me with her penis.”

At the Women’s Liberation Front, (WoLF), we have tried to bring attention to the plight of women imprisoned with men. Except for a few courageous reporters like Mia Cathell, legacy media is not interested. It is not the right narrative.

WoLF just filed a brief in the Ninth Circuit on behalf of women in prison with men in a state prison in California, Chandler v. Macomber (formerly Chandler v. CDCR). WoLF filed the complaint in 2021. The case has proceeded extremely slowly, even by federal court standards. The court has dismissed the complaint twice, accepting completely the allegations that the men are fearful and they will suffer and be abused if they are forced to be in prison with other men.

But the court has not credited the harms the women say they have suffered. The judge reasoned that past harms cannot be remedied by the court, while future harms are too speculative because the women cannot identify exactly who might hurt them or when. I would never have been able to get that reasoning past my colleagues.

In prison, if it is a conflict of rights between men who identify as women and women, the men will win. It seems to be that way in court too. During the ACLU’s push to get trans identifying men into women’s prisons, there was no consideration given to the women. I suppose that might be because everyone was pretending that these men are women. Or was it because the legacy organizations who used to fight for women have surrendered to the large dollars they could receive if they repeated the mantra, “transwomen are women?” We see you NOW. We see you MS Foundation for Women.

And I see you, the Women’s Bar Association of Massachusetts and the Women’s Bar Foundation. “The Women’s Bar Foundation also provides legal seminars at correctional and post-correctional facilities.” They have one county facility participating. There is no way to email the WBA or the WBF directly now. But I know that they know that this is an issue. I told them so in person and in writing in 2024. They had an email address then. I used it and sent them photos. I never heard anything. I invite the WBA and the WBF to reach out to WoLF and partner with us in helping women in prison.

I am in contact with a woman in federal prison, Rhonda Fleming. She has persevered in prison through a long sentence for a non-violent crime. Rhonda has been a “jailhouse lawyer” and a frequent pro se litigant. But that does not mean she has been wrong or complaining about insignificant issues.

Her lawyers in Texas, John Griel and Brian Field, from Schaerr-Jaffe, won a protective order for her and other women at FMC Carswell, a women’s prison in Fort Worth, Texas. This is the first protective order I know of for women in prison with men. Fleming’s lawyers have also moved on behalf of their clients to intervene in Doe v. McHenry (formerly Doe v. Bondi, or Blanche). Another part of that case, argued on July 29 on behalf of the men in federal prison who identify as women, made the news. Judge Royce Lamberth in the federal district court in Washington D.C. sounded judicially “frustrated” about the segregation in FMC Carswell, postulating that it is a violation of his order. (And besides, it is stigmatizing for the trans-identifying men to be with other trans-identifying men).

The problem for Judge Lamberth is that the federal judge in Texas, Judge Sydney Fitzwater, understands that men in women’s prisons cause real harm to the women. So, at FMC Carswell, the trans-identifying men have been moved to a separate floor. At first, they continued to share recreational time and cafeteria time with the women. But, the men are quite angry at the women for rejecting them (sound familiar?) and so they kept up their harassment in those shared spaces. It reminds me of the boys in the cafeteria in middle school when I was an adolescent. But these boys are larger, violent criminals. As a result, Judge Fitzwater ordered them to have separate recreational times and cafeteria times in addition to separate housing.

The men have now claimed that their gender dysphoria is getting worse because they are not with the women. They do not seem to believe that the other men they are housed with are women. Or, as Rhonda said ““If they all claim to be women, what is the big deal with them being in one area?” Fleming questioned. “These men want access to women, but not each other.’” Amie Ichikawa, founder and director of WomanIIWoman remarked, “Women are not support animals.”

When the ACLU began it’s fight for placing trans-identifying men in women’s prison, Chase Strangio reflected in the New Yorker magazine:

“We asked people in prison what they needed, and they all said that they wanted a trans unit,” Strangio said. But the lawyers in the working group, including Strangio, believed that L.G.B.T. units were stigmatizing, and only served to perpetuate the prison system. They advised that inmates’ housing should not be determined solely on the basis of sexuality or gender identity. The D.O.J. accepted the recommendations, and a number of units were shut down. Strangio now regrets the outcome. “We acted as though the real stakeholders were the law professors,” he said.”

Rhonda wrote to me recently that she is “very troubled about Arya Milan Pernell aka Aaron Pernell this man was allowed to rape a woman, after committing a violent crime in a home robbery, while in the Army. Now, he wants to serve his prison sentence with women, after raping a woman. Some in the federal government are insane to even consider such a thing.”

I asked her what the effect of men in women’s prisons, apart from the risk of and actual violent or sexual assaults, has on women inmates:

“The number one thing we have lost is camaraderie. Some women, without wanting to or trying, look like men. Women in the prison have been outright nasty to biological women they believed were biological men. Later, when this is cleared up, there are hard feelings and still a lack of trust. Women do not participate in group trauma classes when men are included.

Just check out what is happening to the fans/supporters of Sophie Cunningham. She is probably the only active player openly saying no men in women’s sports. Now her young fans, girls about 15 years old, are being attacked by women for holding up signs in support of Sophie.

What is happening in our communities, as women, needs a good book on this subject. Why would women go against other women, to allow even one rapist or sex offender in women’s intimate spaces?

We need a women’s townhall, in a national forum, with women on both sides, rationally speaking on this transgender issue. Elspeth, you and WoLF have chosen a good cause. RuPaul-like men give the women a false sense of security.

The prison aspect of men in women’s spaces needs to be put front and center, in the public’s face. Two men get “sex” change surgeries at the taxpayers’ expense? And women who have had cancer, must wait to have their breast replaced.

I would like to get on Joe Rogan and tell the story of my experiences with these men in secluded, unmonitored prison spaces. I will have to find out how Joe Rogan picks his interviews.”

(Rhonda, I would like you to have that interview! If anyone knows how to make that happen, please let me know).

Fleming raises a very good point: why aren’t women supporting each other in this? Why are some of the women coaches of the WBNA basketball teams criticizing Sophie Cunningham for standing up for women and girls? How did it happen that women have been convinced that “transwomen are women”?

Dividing women against each other, or pitting them against each other for male attention, has always been an effective method of keeping women of all races, religions, and classes separate from and mistrusting of each other. It has been happening for thousands and thousands of years. In that regard, calling women transphobic or bigots for objecting to men in their spaces or on their teams is not much different than naming another woman “witch” during the witch hunts in Europe and North America from the 1400’s to until the 1800’s.

If you want to help women in prison with men, reach out to Women’s Liberation Front.

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Special Guest Author Judith Shiavone, testified, along with four other women, before the Massachusetts Commission on the Status of Women, on March 24, 2026. Below is her introduction explaining why she testified, followed by her letter to the MCSW asking why her comments were considered inappropriate and hateful.

By Judith Schiavone

I testified at the Massachusetts Commission on Women (MCSW) public hearing because I wanted my concerns to be heard. There are no longer any lesbian only spaces, events or lesbian dating apps as fully intact males who claim to be lesbians have successfully invaded our spaces and if one dare to have a lesbian only event it will be met with the most extreme forms of vitriol, threats of violence, potential loss of employment and certain social death. It is no wonder that so many lesbians choose to remain silent or if in long term relationships with no need to seek out other lesbians are not aware of what is happening. Young lesbians especially are under enormous pressure to date fully intact males or risk ostracism and extreme opprobrium. Young lesbians are also experiencing extreme pressure to “transition to men.”

I am no longer willing to remain silent, to buckle to the authoritarianism of the political left and gender ideology that has forced so many to remain silent for fear of losing their employment, careers, loss of friends and loss of standing in the community. I am retired so I am not at risk of loss of employment. I have lost friends who are not able to see through the obfuscations and deceit of a pernicious, sexist, misogynistic ideology. It is important to speak up, to speak truth, to speak facts, to not consent to the destruction of my rights. Speaking truth to power and refusing to be silent is, in my opinion, the first step of non-violent resistance. My letter to the MCSW Executive Director is in response to being scolded and essentially being told to “shut up.”

April 7, 2026

Shaitia Spruell, Executive Director

Massachusetts Commission on the Status of Women

Dear Executive Director Shaitia Spruell:

I testified online at the March 24th public hearing. I was one of several other women who were scolded by the chairwoman Mary-dith Tuitt for our alleged negative hateful remarks, Giselle Byrd compared us to southern racist white supremacists, all because we stated the fact that no male can ever become a woman, no male can ever become a lesbian, males have no right to disregard women’s boundaries violating rights to privacy, safety, dignity and opportunities and males do not belong in women’s sports or prisons. To state that no human can change sex is not hateful, it is a fact. Sex is immutable while gender is a fluid, undefined, subjective, social construct rooted in regressive sex role stereotypes.

I was scolded for saying that Lesbians do not have male genitalia, that no male can ever become a Lesbian, and the fact that sexual orientation is rooted in the material biological reality of sex. I also stated the fact that over 90% of men who claim to be women retain their male genitalia and to force lesbians to accept males into lesbian only spaces is an insidious form of male domination, male sexual entitlement and is akin to supporting rape culture. Please refer to recorded testimony for my full statement.

I came out in 1978, before Lesbian and Gay Rights and am quite familiar with discrimination and prejudice, especially from right wing extremists. I was spit on at the first Lesbian and Gay march on Washington DC in 1979 by right wing extremists with their flames of hell banners telling me I was going to rot in hell. And, today in 2026 the hate, the verbal assaults, threats of physical violence, death threats, and vicious vitriol is coming from the progressive political left who have fully embraced the misogynist pseudoscience of gender ideology. Currently, the hate, homophobia and loss of lesbian only spaces due to gender ideology forcing lesbians to submit to males in lesbian spaces is worse than when I came out in 1978 when lesbians were able to have lesbian only spaces and therefore the ability to build a lesbian community. Currently, lesbians have been forced to go “underground” in order to avoid vitriol and threats of violence from the progressive left and to avoid being forced to have males in lesbian spaces. Not being able to have lesbian only spaces is a violation of my rights to free association and makes it difficult to create community especially for younger lesbians who are being indoctrinated to believe lesbians have male genitalia and the refusal to include in their dating pool is “transphobic and hateful” when in reality it is misogynistic, a hate toward lesbians; it is male domination, male sexual entitlement, a violation of boundaries akin to supporting rape culture.

My testimony was an attempt to alert the MCSW that my rights as a woman, my rights as a lesbian are under attack and need to be addressed. I was nervous speaking because I knew that my remarks would be met with hostility and indeed, I was scolded by the chairwoman. And, being told by Giselle Byrd that “they are coming for you next” was ironic given that the immediate threat to lesbian rights is coming from the progressive left-and frankly, my generation of Lesbians and Gays successfully fought the extreme right years ago and we will do it again, if necessary-but never thought we would ever have to fight the political left for our rights. My remarks were not hateful-please refer to recorded testimony.

I stated facts, not merely opinions, of how my rights as a lesbian and women are being violated. I have a right to free speech. The chair woman’s scolding though not explicitly saying, “Shut up” was in fact meant to shut me up. I am requesting an apology for what was essentially being told to shut up, remain silent because my concerns and rights do not matter.

Further, I am requesting an explicit explanation of how my testimony was negative and harmful to women that somehow deserved being described as shameful to humanity and being compared to a racist white supremacist.

I am a feminist and will never stop fighting for women’s rights despite the current attack on women’s rights from both the political left and the political right, particularly from the very organizations that have betrayed their mission to women and girls by replacing sex-based rights with gender identity ideology.

Respectfully,

Judith Schiavone

Greenfield, MA

cc: Governor Maura Healey

Elspeth Cypher, Women’s Liberation Front Board President; Massachusetts Supreme Court Justice (Retired)

Feminists have been trying to talk about female gender stereotypes being adopted by men so that they can “be women” since the early 1970’s. At least.

We are still trying to talk about it. The reason we are trying rather than actually talking about it in a space where these questions are asked is because we have been cancelled, throttled, harassed, and banned from numerous social media accounts, including the most commonly used. WoLF made a handy list of the cancelled. Kara Dansky created Free Speech Friday to recognize the brave women who persist in speaking.

The harassment is threatening, overt, sexual, and violent, and it is starting in this platform. Some women are writing open letters asking Substack to do a better job when women are threatened and harassed on Substack.

It wasn’t until Elon Musk opened the door to X that we could return to that platform. We are too hateful for other platforms, still.

And when women physically congregate in a public space to speak, opponents of women’s free speech show up to make noise, threaten, and throw things. Then the women are reported to an authority for hate speech. We do not understand why is hateful to discuss women’s issues in a women’s only space.

Another version of “where are the feminists” is “liberal women agreed to this.” Did they really agree to sexually violent intact men in women’s prisons? Or ANY men in women’s prisons? Did they really agree to elementary school children being taught that they might have been born in the wrong body? Did they really agree that adolescent and teenage girls had to share their locker rooms and bathrooms with boys when the boys felt like “sharing”? Did they agree to their daughters losing places in sports so that a male can win? Maybe. Maybe some did but, but did they foresee where this could lead? Even if they did, as Rep. Joshua Wheeler spoke in the New Hampshire reminded everyone, you can only consent for yourself.

Yes, we know, not all men. But it is always men. As for single sex spaces, I think that is best summed up as Amy Souza put it: “Good men stay out so bad men stand out.”

It is time for real, substantive talk where women are not silenced. Dear readers, we are ready anytime a legacy media outlet wants to talk. Where are the feminists? Here. You think the LGB invited the TQ+? Look here LGB Courage Coalition.

A group of us (so scary!) got together and, with Kara Dansky leading the charge, created a template you can use when you see that the media is not covering the “gender issue” fairly. Please direct them to anyone on for an educated “other side” of the issue. Feel free to preemptively share the list. Send it to the reporters who need it. This is a lot of expertise! Reporters should have easy access to it. For an excellent discussion of the polling statistics see The TERF Report by Kara Dansky. For a discussion of bad gender arguments see Encyclopedia of Bad Gender Arguments

Dear [reporter and/or editor]

I am writing regarding your recent piece, [title of article]. I was surprised and disappointed to find the piece quotes neither [relevant expert from our list] nor any other left-leaning advocate for the importance of sex in law and society.

To omit the voices of liberal and progressive dissenters to “gender identity” is to impose a false left-right frame on hotly contested issues. It is not impartial reporting.

The individuals listed below are leaders in the effort to reinstate the material reality of sex as the basis for law, policy, and medicine. They are all grounded in the political left (though their party affiliations may have shifted over time). The media landscape must include their expertise.

Please contact them for comment before you publish on any matter pertaining to sex, “gender identity” or “trans,” and please use the style guide developed by Women’s Declaration International USA when reporting on these matters.

On the leftist feminist objections to “gender identity” and to “trans” generally:

• Kara Dansky, The Democratic Women’s Declaration, The TERF Report, The Reckoning, The Abolition of Sex, demwomensdec@gmail.com, @kdansky

• Elizabeth Chesak, Women’s Declaration International USA (WDI USA), president@womensdeclarationusa.com, @WDI_USA

• Elspeth Cypher, Women’s Liberation Front (WoLF), contact@womensliberationfront.org, @WomensLibFront, @EBCLaw

On parents’ rights, children’s rights, and autogynephilia

• Erin Friday, Our Duty, erin@ourduty.group, @ErinFriday75490

On the Leftist objections to “pediatric gender medicine”

• Jamie Reed, LGB Courage Coalition, Jamie.reed@lgbcouragecoalition.org, @LGBCourage

• Lauren Leggieri, LGB Courage Coalition, Lauren.leggieri@lgbcouragecoalition.org, @LGBCourage

• Martha Wexler, Democrats for an Informed Approach to Gender (DIAG), media@di-ag.org, @DIAGdemocrats

On the leftist LGB objections to “gender identity” and “trans” generally

• Jamie Reed, LGB Courage Coalition, Jamie.reed@lgbcouragecoalition.org, @LGBCourage

• Lauren Leggieri, LGB Courage Coalition, Lauren.leggieri@lgbcouragecoalition.org, @LGBCourage

On female-only sports

• Kim Jones, ICONS, kimjones@iconswomen.com, @icons_women

• Marshi Smith, ICONS, kimjones@iconswomen.com, @icons_women

• Jennifer Sey, XX-XY Athletics, sey@xx-xyathletics.com, @xx_xyathletics

On dissent within the Democratic Party

• Martha Wexler, Democrats for an Informed Approach to Gender (DIAG), media@di-ag.org, @DIAGdemocrats

• Kara Dansky, The Democratic Women’s Declaration, The TERF Report, The Reckoning, The Abolition of Sex, demwomensdec@gmail.com, @kdansky

On single-sex spaces (prisons, bathrooms, locker rooms, etc.)

• Jean Chadbourne, Women Are Real, info@femalesmatter.org, @WomenAreReals

On detransition

• Elizabeth Chesak, Women’s Declaration International USA (WDI USA), president@womensdeclarationusa.com, @WDI_USA

On female safeguarding issues and child safeguarding issues

• Amy Sousa, knownheretic.com, theknownheretic@gmail.com, @KnownHeretic

On sex and gender in law and the courts

• Kara Dansky, The Democratic Women’s Declaration, The TERF Report, The Reckoning, The Abolition of Sex, demwomensdec@gmail.com, @kdansky

• Elspeth Cypher, Women’s Liberation Front (WoLF), contact@womensliberationfront.org, @WomensLibFront, @EBCLaw

• Erin Friday, Our Duty, erin@ourduty.group, @ErinFriday75490

Sincerely,

(you)

It’s time for the media to listen to and platform the experts on the political left. Let’s go.

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– Olympia Dukakis

Several years ago, I was teaching a law school seminar called “Feminist Legal Theory” as an adjunct professor. I was relieved when no men signed up for the class because after teaching as an adjunct for over forty years I can say one thing with certainty: women do not talk as much when there are men in the room, even when those men “identify” as women. After a few weeks together and some good discussions, I nevertheless sensed that some of the women in my all‑female class were silencing themselves.

Part of this, I thought, was conditioned sensitivity to others in the current social climate. The mostly white women remained true to stereotype, polite and hesitant to say anything too controversial lest they offend someone. The few women of color chose their words carefully as well. Everyone went silent when I tried to initiate discussion of whether women’s sex‑based rights clash with gender ideology. I had not yet realized that the depth of indoctrination would require silence even in an all‑female class.

No one in the class identified as transgender, yet they could not abandon their silence on this topic. The aggressively advancing transgender movement had been with them in high school and college. When I was challenged to include trans‑identifying men in my definition of feminism for the class, I declined, explaining that in Feminist Legal Theory we would be discussing women.[i]

To try to break through this self‑censoring, I constructed an exercise in which each student spoke one‑on‑one with another student for ten minutes about something she had wanted to say in class but did not. Then they switched partners until each student had talked to every other student and the class was almost over. As the session ended, I sensed a palpable release among them. They reported that the exercise was a great relief and that they felt substantially more connected to each other. I did not realize I had just unified them against me.

I knew that many women had suffered censorship and job loss for speaking about gender identity. I asked my students: how had we arrived at this place where women could not discuss their own sex class? No one would talk, except sometimes to stage‑whisper, “transwomen are women.” And I would say, well then there should be no problem limiting our discussion to women if, after all, transwomen are women.

We know that women are more likely to be interrupted. A study of the United States Supreme Court found that female justices are interrupted three times more than male justices. A woman says something at a meeting and no one responds; a minute later, a man repeats what she said and everyone declares the idea brilliant. We know the words used to describe women’s speech: shrill, bossy, hysterical, bitchy, nagging, opinionated, loud, gossip, piercing, strident, grating, chatty, abrasive, argumentative, and clacky.

What we may not know is how deliberate, thorough, and effective our silencing has been. Women have been silenced since the beginning of written history. Aristotle wrote, “Silence is a woman’s glory, but this is not equally the glory of man.” Paul takes this further in the Bible:

“Women should remain silent in the churches. They are not allowed to speak, but must be in submission, as the law says. If they want to inquire about something, they should ask their own husbands at home; for it is disgraceful for a woman to speak in the church.” (1 Cor. 14:34–35)

Elsewhere he wrote:

“A woman should learn in quietness and full submission. I do not permit a woman to teach or to assume authority over a man; she must be quiet. For Adam was formed first, then Eve. And Adam was not the one deceived; it was the woman who was deceived and became a sinner. But women will be saved through childbearing—if they continue in faith, love and holiness with propriety.” (1 Tim. 2:11–15)

In the fourteenth century, The Good Wife’s Guide encouraged women to be silent, or at least to speak sparingly and wisely so as to protect their husbands’ secrets. During that period in England, there are records of two towns’ efforts to officially silence women. In one town, the court demanded that “all the women of the township control their tongues.” In another, women were instructed to restrain their tongues and not scold or curse any man.

Women’s silence even became a subject of rhetorical study. In 1560, in The Arte of Rhetorique, Thomas Wilson wrote:

“What becometh a woman best, and first of all? Silence. What second? Silence. What third? Silence. What fourth? Silence. Yea, if a man should aske me till Domes daye I would still crie silence, silence.”

William Shakespeare criticized women’s speech. In The Taming of the Shrew, Katharina has “a scolding shrewish tongue” that Petruchio attempts to manage. Fairy tales reinforced our silence. In The Little Mermaid by Hans Christian Andersen, the mermaid willingly trades her voice to the Sea Witch for a pair of legs so she may try to find and enchant the Prince. She gives up her voice, even after asking the Sea Witch a question that is still relevant: “But if you take away my voice, what is left for me?”

It should not be surprising that women silence themselves. Men did not just use words or negative stories to control women’s speech. There had been a women’s subculture in the Middle Ages, a world in which women talked freely to each other and sought the advice and aid of midwives and wise women. The witch accusations that swept through medieval Europe ended this community and terrorized women into silence. Once accused, women were tortured, tried, and publicly executed—usually burned to death—by the tens of thousands, if not hundreds of thousands. Women learned to live in fear. Of men. And of each other. Women learned not to talk.

Scholars have shown that the witch trials had the effect of silencing women. They no longer brought cases to court because they feared speaking up for themselves. The number of rape accusations brought to court decreased. Women protested less. Women became more passive and submissive.

Women need not be accused of witchcraft to be silenced physically. Between the 1500s and 1800s, an iron device called a Skold’s Bridle or Brank was used to silence and humiliate women in public. This device was like a metal cage around a woman’s head, obtained from a local jailer, with a plate that went inside her mouth and pressed down on her tongue to keep her quiet. Some of the mouthpieces had a spike to ensure the woman did not attempt to speak. A husband or other male authority would walk her around the village on a chain while she wore the device. At home, a woman in the Skold’s Bridle was chained to the hearth. The Bridle was used on women considered troublesome to stop them from “gossiping.” English law defined a scold as “a troublesome angry woman who, by her brawling and wrangling among her neighbors, doth break the public peace, and beget, cherish and increase public discord.”

Quaker Dorothy Waugh has left us a rare firsthand account of such punishment. In 1655, she was taken into custody for publicly preaching in the market of Carlisle, England, where women were expected to remain silent. Waugh was bridled for three hours. She wrote:

“[T]hat which they called so was like a steele cap… which was a stone weight of Iron… & three barrs of Iron to come over my face, and a peece of it was put in my mouth, which was so unreasonable a big thing for that place as cannot be well-related, which was locked to my head, and so I stood their time with my hands bound behind me with the stone weight of Iron upon my head, and the bitt in my mouth to keep me from speaking.”

She was whipped and then run out of town while still bridled.

In the American colonies, women were expected to be silent. They could be harshly punished and humiliated for talking too much, speaking too publicly, or using a tone of voice that seemed grating or nagging. Women could be labeled as scolds or gossips and punished accordingly by gagging them and standing them in the market square with a sign describing their “crime.” Their tongues could be fastened shut with a cleft stick.[ii] Sometimes they were subjected to the ducking stool.[iii]

When Susan B. Anthony traveled the country giving speeches in favor of abolition and women’s suffrage, it was considered scandalous for women to speak in public. Anthony remembered women’s fight for the right to speak in public when she said, “No advanced step taken by women has been so bitterly contested as that of speaking in public. For nothing which they have attempted, not even to secure the suffrage, have they been so abused, condemned and antagonized.”

The same week I did the exercise with my class, I attended a Zoom seminar for judges conducted by a respected constitutional law scholar. His talk was on the constitutional implications for state supreme courts of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. Most of the audience consisted of trial court judges, and most were men. We put our questions in the chat. As the chat rolled, the professor kept his eye on the questions and integrated them into his presentation.

The first question in the chat was from a male trial court judge and was highly specific to procedural issues unique to our state court system. He wanted to know what he should do if another state tried to charge one of its own citizens who came to Massachusetts for an abortion. A constitutional law professor could not reasonably answer a question like that; it was a procedural question involving idiosyncratic state‑by‑state rules. That was a question for the judge’s chief or for his court’s legal department. The questioner should have seen that, I thought. The professor turned the question into a more appropriate theoretical question and gave a perfectly good answer within his realm of expertise.

Toward the end of the presentation, something he said prompted me to write in the chat, “What about passing the ERA?” He saw the question, became animated, and started to answer. That was when the male moderator interrupted him: “I think there is a question that did not get answered from the beginning of the chat, about what to do if a woman from another state comes here for an abortion and her home state wants to bring her back to prosecute her.” The professor replied that he thought he had answered that already and that he did not know what a judge should do, as that was a court‑based technical question. The moderator started to wrap things up, and I started to steam. At that point, one of my closest friends, a man I have served with on two Massachusetts appellate courts for over twenty years, said, “I think Justice Cypher had a question.”

The professor re‑engaged and confirmed my fears. “You will get the same result if the ERA is passed.” That was what I had suspected, so I asked him whether it was possible that, between women losing the right to control their bodies in Dobbs and gender ideology changing the definition of women to include men, women could end up back under coverture. He said that was absolutely the logical consequence of both the right‑ and left‑wing constitutional theories operating in the legal system at the same time.

After the program, I took a minute to examine my mixed feelings. I was pleased to have his answer because I had raised this consequence before and had it dismissed as a preposterous idea. This male constitutional scholar agreed with me. But I was resentful that I needed a male authority to validate my concern. I was even more resentful that the moderator interrupted the professor just as he began to answer my question. I was grateful to my male friend for redirecting the professor back to my question. I felt angry that a man had to come to my rescue. I was disappointed in myself for not thinking quickly enough to keep my question from being derailed.

Some women like to look at the bright side and say, be thankful we have evolved. But in February 2017, during confirmation hearings for Attorney General Jeff Sessions, Senate Majority Leader Mitch McConnell attempted to silence Senator Elizabeth Warren for reading a letter from the late Coretta Scott King. This confidence that “things are better now” can itself become another way of telling women not to notice, and not to name, ongoing efforts to shut them up. McConnell defended his actions by insisting, “She was warned. She was given an explanation. Nevertheless, she persisted.”

Silencing of women continues around the world. No women are more silenced than the women of Afghanistan, who may not speak at all, and enforcement there is brutal. Women in the Western world have been silenced on the topic of sex‑based rights. Enforcement here comes as lost opportunities, friendships, jobs, and social networks. Shunning. In Canada, “wrong” speech can come with hefty fines and other punishments, so women are careful. We know this. We see this. We even hear it when a Supreme Court nominee cannot define what a woman is because she is not a biologist.

I hope that openings for such discussions have begun—little pinholes of light coming in. We must remember what a woman is and talk about it. We must draw attention to our sisters in Afghanistan, where there is no confusion about who is a woman and what that means for them. We must speak up for our sisters in Canada, who cannot risk it themselves. And we must persist in the United States. If you cannot define a woman, you cannot defend a woman.

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[i] This turned out to be my own “silencing” mistake with later consequences. A subject for another Substack.

[ii] In England the cleft stick was used as a punishment tool to trap the tongues of “overtalkative” women. Records of the Town of East‑Hampton from 1639 to 1680 note that cleft sticks were used “to curb the tongues of unruly women,” including a 1652 entry ordering that “Goody Edwards shal pay 3 Lb or have her tongue in a cleft sticke for the Contempt of a warent.”​

[iii] A ducking stool was mainly a device for punishing “scolds” and other allegedly disorderly women by repeatedly plunging them into water, though in some places it overlapped with witch‑persecution practices.

Justice walks into the room.

No one recognizes her.

She is just

Is just

Just is

Another woman.

Now that the fireworks are over I have been thinking about one of the most important woman in women’s history, feminist theory, and the suffrage movement. But also one who is not well known.

On July 4, 1876, in Philadelphia, at the centennial celebration of the signing of the Declaration of Independence, Matilda Joslyn Gage, accompanied by Susan B. Anthony and several other suffrage activists, presented “A Woman’s Declaration of Rights and Articles of Impeachment Against the Government of the United States” to the acting Vice President, Thomas Ferry. The document had been written by Gage and Elizabeth Cady Stanton. The women had asked for permission to present the document, which was denied. They did it anyway. One of the suffrage activists, Sara Andrews Spencer, later said “You don’t know how this inspired us. I never yet was forbidden by a man to do a thing, but that I resolved to do it.”

Elizabeth Cady Stanton stated about the Declaration of Rights and Articles of Impeachment that “their work was not for themselves alone, nor for the present generation, but for all women of all time.” Gage said that “We did not know but we might be arrested, but we cared not. Our work was necessary and done from principle. We went out then, through the Hall…and up on to a music stand, which was unoccupied during the events within. There Susan read the Declaration. I stood by her side, shading her with my parasol.” Anthony read:

“While the nation is buoyant with patriotism, and all hearts are attuned to praise, it is with sorrow we come to strike the one discordant note, on this one-hundredth anniversary of our country's birth. When subjects of kings, emperors, and czars, from the old world join in our national jubilee, shall the women of the republic refuse to lay their hands with benedictions on the nation's head? Surveying America's exposition, surpassing in magnificence those of London, Paris, and Vienna, shall we not rejoice at the success of the youngest rival among the nations of the earth? May not our hearts, in unison with all, swell with pride at our great achievements as a people: our free speech, free press, free schools, free church, and the rapid progress we have made in material wealth, trade, commerce and the inventive arts? And we do rejoice in the success, thus far, of our experiment of self-government. Our faith is firm and unwavering in the broad principles of human rights proclaimed in 1776, not only as abstract truths, but as the corner stones of a republic. Yet we cannot forget, even in this glad hour, that while all men of every race, and clime, and condition, have been invested with the full rights of citizenship under our hospitable flag, all women still suffer the degradation of disfranchisement.

The history of our country the past hundred years has been a series of assumptions and usurpations of power over woman, in direct opposition to the principles of just government, acknowledged by the United States as its foundation, which are:

First – The natural rights of each individual.

Second – The equality of these rights.

Third – That rights not delegated are retained by the individual.

Fourth – That no person can exercise the rights of others without delegated authority.

Fifth – That the non-use of rights does not destroy them.”

Anthony moved on to the argument for impeachment:

“And for the violation of these fundamental principles of our government, we arraign our rulers on this Fourth day of July, 1876, - and these are our articles of impeachment:

Bills of attainder have been passed by the introduction of the word "male" into all the State constitutions, denying to women the right of suffrage, and thereby making sex a crime – an exercise of power clearly forbidden in article I, sections 9, 10, of the United States constitution.

The writ of habeas corpus, the only protection against lettres de cachet and all forms of unjust imprisonment, which the constitution declares "shall not be suspended, except when in cases of rebellion or invasion the public safety demands it." is held inoperative in every State of the Union, in case of a married woman against her husband – the marital rights of the husband being in all cases primary, and the rights of the wife secondary.

The right of trial by a jury of one's peers was so jealously guarded that States refused to ratify the original constitution until it was guaranteed by the sixth amendment. And yet the women of this nation have never been allowed a jury of their peers – being tried in all cases by men, native and foreign, educated and ignorant, virtuous and vicious. Young girls have been arraigned in our courts for the crime of infanticide; tried, convicted, hanged – victims, perchance, of judge, jurors, advocates – while no woman's voice could be heard in their defense. And not only are women denied a jury of their peers, but in some cases, jury trial altogether. During the war, a woman was tried and hanged by military law, in defiance of the fifth amendment, which specifically declares: "No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases . . . . of persons in actual service in time of war." During the last presidential campaign, a woman, arrested for voting, was denied the protection of a jury, tried, convicted, and sentenced to a fine and costs of prosecution, by the absolute power of a judge of the Supreme Court of the United States.

Taxation without representation, the immediate cause of the rebellion of the colonies against Great Britain, is one of the grievous wrongs the women of this country have suffered during the century. Deploring war, with all the demoralization that follows in its train, we have been taxed to support standing armies, with their waste of life and wealth. Believing in temperance, we have been taxed to support the vice, crime and pauperism of the liquor traffic. While we suffer its wrongs and abuses infinitely more than man, we have no power to protect our sons against this giant evil. During the temperance crusade, mothers were arrested, fined, imprisoned, for even praying and singing in the streets, while men blockade the sidewalks with impunity, even on Sunday, with their military parades and political processions. Believing in honesty, we are taxed to support a dangerous army of civilians, buying and selling the offices of government and sacrificing the best interests of the people. And, moreover, we are taxed to support the very legislators and judges who make laws, and render decisions adverse to woman. And for refusing to pay such unjust taxation, the houses, lands, bonds and stock of women have been seized and sold within the present year, thus proving Lord Coke's assertion, that "The very act of taxing a man's property without his consent is, in effect, disfranchising him of every civil right."

Unequal codes for men and women. Held by law a perpetual minor, deemed incapable of self-protection, even in the industries of the world, woman is denied equality of rights. The fact of sex, not the quantity or quality of work, in most cases, decides the pay and position; and because of this injustice thousands of fatherless girls are compelled to choose between a life of shame and starvation. Laws catering to man's vices have created two codes of morals in which penalties are graded according to the political status of the offender. Under such laws, women are fined and imprisoned if found alone in the streets, or in public places of resort, at certain hours. Under the pretense of regulating public morals, police officers seizing the occupants of disreputable houses, march the women in platoons to prison, while the men, partners in their guilt, go free. While making a show of virtue in forbidding the importation of Chinese women on the Pacific coast for immoral purposes, our rulers, in many States, and even under the shadow of the national capitol, are now proposing to legalize the sale of American womanhood for the same vile purposes.

Special legislation for woman has placed us in a most anomalous position. Women invested with the rights of citizens in one section – voters, jurors, office-holders – crossing an imaginary line, are subjects in the next. In some States, a married woman may hold property and transact business in her own name; in others, her earnings belong to her husband. In some States, a woman may testify against her husband, sue and be sued in the courts; in others, she has no redress in case of damage to person, property, or character. In case of divorce on account of adultery in the husband, the innocent wife is held to possess no right to children or property, unless by special decree of the court. But in no State of the Union has the wife the right to her own person, or to any part of the joint earnings of the co-partnership during the life of her husband. In some States women may enter the law schools and practice in the courts; in others they are forbidden. In some universities girls enjoy equal educational advantages with boys, while many of the proudest institutions in the land deny them admittance, though the sons of China, Japan and Africa are welcomed there. But the privileges already granted in the several States are by no means secure. The right of suffrage once exercised by women in certain States and territories has been denied by subsequent legislation. A bill is now pending in congress to disfranchise the women of Utah, thus interfering to deprive United States citizens of the same rights which the Supreme Court has declared the national government powerless to protect anywhere. Laws passed after years of untiring effort, guaranteeing married women certain rights of property, and mothers the custody of their children, have been repealed in States where we supposed all was safe. Thus have our most sacred rights been made the football of legislative caprice, proving that a power which grants as a privilege what by nature is a right, may withhold the same as a penalty when deeming it necessary for its own perpetuation.

Representation of woman has had no place in the nation's thought. Since the incorporation of the thirteen original States, twenty-four have been admitted to the Union, not one of which has recognized woman's right of self-government. On this birthday of our national liberties, July Fourth, 1876, Colorado, like all her elder sisters, comes into the Union with the invidious word "male" in her constitution.

Universal manhood suffrage, by establishing an aristocracy of sex, imposes upon the women of this nation a more absolute and cruel depotism [sic] than monarchy; in that, woman finds a political master in her father, husband, brother, son. The aristocracies of the old world are based upon birth, wealth, refinement, education, nobility, brave deeds of chivalry; in this nation, on sex alone; exalting brute force above moral power, vice above virtue, ignorance above education, and the son above the mother who bore him.

The judiciary above the nation has proved itself but the echo of the party in power, by upholding and enforcing laws that are opposed to the spirit and letter of the constitution. When the slave power was dominant, the Supreme Court decided that a black man was not a citizen, because he had not the right to vote; and when the constitution was so amended as to make all persons citizens, the same high tribunal decided that a woman, though a citizen, had not the right to vote. Such vacillating interpretations of constitutional law unsettle our faith in judicial authority, and undermine the liberties of the whole people.

These articles of impeachment against our rulers we now submit to the impartial judgment of the people. To all these wrongs and oppressions woman has not submitted in silence and resignation. From the beginning of the century, when Abigail Adams, the wife of one president and mother of another, said, "We will not hold ourselves bound to obey laws in which we have no voice or representation," until now, woman's discontent has been steadily increasing, culminating nearly thirty years ago in a simultaneous movement among the women of the nation, demanding the right of suffrage. In making our just demands, a higher motive than the pride of sex inspires us; we feel that national safety and stability depend on the complete recognition of the broad principles of our government. Woman's degraded, helpless position is the weak point in our institutions to-day; a disturbing force everywhere, severing family ties, filling our asylums with the deaf, the dumb, the blind; our prisons with criminals, our cities with drunkenness and prostitution; our homes with disease and death. It was the boast of the founders of the republic, that the rights for which they contended were the rights of human nature. If these rights are ignored in the case of one-half the people, the nation is surely preparing for its downfall. Governments try themselves. The recognition of a governing and a governed class is incompatible with the first principles of freedom. Woman has not been a heedless spectator of the events of this century, nor a dull listener to the grand arguments for the equal rights of humanity. From the earliest history of our country woman has shown equal devotion with man to the cause of freedom, and has stood firmly by his side in its defense. Together, they have made this country what it is. Woman's wealth, thought and labor have cemented the stones of every monument man has raised to liberty.

And now, at the close of a hundred years, as the hour-hand of the great clock that marks the centuries points to 1876, we declare our faith in the principles of self-government; our full equality with man in natural rights; that woman was made first for her own happiness, with the absolute right to herself - to all the opportunities and advantages life affords for her complete development; and we deny that dogma of the centuries, incorporated in the codes of all nations – that woman was made for man – her best interests, in all cases, to be sacrificed to his will. We ask of our rulers, at this hour, no special favors, no special privileges, no special legislation. We ask justice, we ask equality, we ask that all the civil and political rights that belong to citizens of the United States, be guaranteed to us and our daughters forever.”

Reports reflect that the crowd cheered and sought copies of the Declaration.

Alas, some things don’t change. Women do not yet have the rights that Gage and the other suffrage activists demanded. And, a disagreement among Gage, Stanton, and Anthony regarding Gage’s radical assessment that religion was a significant part of women’s problem resulted in Anthony writing Gage out of the movement.

Gage did not only advocate for women. As a young girl she was already an abolitionist, influenced by her parents and the use of their home as a station on the Underground Railroad. Gage also advocated on behalf of Native Americans. She publicly criticized the treatment of Native Americans by the federal government. She also brought needed attention to the poor treatment of the Haudenosaunee (Iroquois) and other native nations in the New York Evening Post and in her speeches. In recognition of her work on their behalf, Gage was honorarily adopted into the Wolf Clan of the Mohawk Nation in 1893. They gave her the name Karonienhawi, meaning “she who holds the sky.”

Perhaps on her own she was more powerful as she was able to freely express her ideas. She has left us a treasure in Woman, Church, and State and the Declaration of Rights. We are the women in the her future.

What are we going to do with her legacy?

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By Matilda Joslyn Gage

Woman Church and State

The Dangers of the Hour

About Matilda Joslyn Gage

Born Criminal, Matilda Josyln Gage, Radical Suffragist by Angelica Shirley Carpenter, South Dakota Historical Society Press, 2018.

Matilda Joslyn Gage: She Who Holds The Sky, by Sally Roesch Wagner (This one is hard to find and expensive)

Read more about her here:

National Women’s History Museum

Archives of Women’s Political Communication

For a copy of the Declaration of Rights and Articles of Impeachment:

Archives of Women’s Political Communication

"History of Woman Suffrage," edited by Elizabeth Cady Stanton, Susan B. Anthony and Matilda Joslyn Gage, Vol III (1876-1885) page 31, Ayers Company Pub., Inc, Salem, NH 1985.

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Love is the law, love under will

Law lays a heavy blanket
Can you breathe under it?

Law spins a complex web
Can you walk between the strands?

Law spreads black ice 
Can you keep from falling?

Law shuts doors
Can you open the door?

Law protects me from you
Law binds me to you

Law confines me
Law frees me

Law orders human relationships
Can you love under law?


 

Photo courtesy of Pamela Eakins, Empress, Tarot of the Spirit 

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This leaves me quiet and still.

When I started writing this we were awash in gender related Executive Orders (EOs). Many of them have been challenged, sometimes multiple times, and most of the plaintiffs have been successful in obtaining a stay of the gender related EO in question. Since then, more and more EOs have been released on immigration, citizenship, sanctuary cities, antisemitism on campuses, reclassification of civil employees, USAID, U.S. African Development Foundation, the Department of Education, reductions in force in all federal agencies, housing, energy, DEI, nonmandatory functions and sections of seven agencies, government contracts, and rescinding five executive orders by former presidents from 1965 to 2016 regarding the EEOC. There are currently 151 lawsuits filed against the Trump administration. Only three have been closed. https://www.justsecurity.org/107087/tracker-litigation-legal-challenges-trump-administration/

EOs are guidance from the President to the heads of the federal agencies, or a statement of policy, or a declaration that a particular day is something special, such as today, which is, among other things, National Lemon Chiffon Day. The Constitution matters more, as do statutes and regulations, and judicial decisions. For example, if an agency has regulations that were properly created in accordance with the Administrative Procedures Act, an EO cannot wipe the the regulation off of the books. It has to be properly rescinded first. Then the agency can propose new regulations that comport with the President’s intent.

Although I am not a fan of Zeus, the King of the Gods on Mt. Olympus, I am reminded of him when Executive Orders fly out. Zeus was known for throwing lightening bolts, accompanied by thunder and lightening, when displeased. His Master Bolt was named The Keraunos, and it represented Zeus' power and strength. All of Zeus’ other lightning bolts were patterned after the Master Bolt. Zeus had gained all the power of the Titans when he defeated them after a ten year war, including the ability to control Day and Night, call forth the Sun and Moon, and govern the effects of time.

Before the era of the Olympian Gods and Goddesses, the Titans ruled the world. Cronos, Zeus’ father, was the leader of the Titans after he conquered his father, the Sky. Cronos was able to move the Sun and the Moon, dividing time in days, months and years. (Chronos, often confused with Cronos, was a giant primordial serpent coiled around the Universe making the sky spin). By conquering his father Cronos, Zeus became the Supreme Power and he banished the Titans to Tartarus, a place of eternal suffering and confinement.

On his first day in office, Trump issued an Executive Order, (EO) “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” Many women did not expect that and for some of us, it felt like a lightening bolt and we had, maybe, twenty minutes of joy. It felt good to have an official document specifically recognize that “efforts to eradicate the biological reality of sex fundamentally attack women by depriving them of their dignity, safety, and well being.” We are more than “non-men.”

To track or read the EOs regarding gender: WoLF Executive Order Updates.

Section 2 (a) and (b) of the order provided definitions that I would not quarrel with. The order stated that (a) “[s]ex” shall refer to an individual’s immutable biological classification as either male or female. Sex is not a synonym for and does not include the concept of “gender identity.” This EO got right to the point some of us (radical feminists) have been trying bring to the attention of lawmakers, the media, and anyone who would listen and not assume we were bigots for standing for the sovereignty of the female.

Granted, perhaps a modern day Zeus is not the best messenger to assuage charges of bigotry. But the message was heard which opened pubic discussion of a topic that was known for its “no debate” stance.

Section 2 (b) even defined “woman” as an adult human female and “girl” as a juvenile human female. Had he seen Posie Parker’s signs in the United Kingdom? Were his advisors using an old (pre-2020) dictionary? Or had gender critical advisors infiltrated the White House? Section (c) defined “Men” and “boys.” We don’t have to pause here to check the definition. No one ever lost sight of what those words meant. No one in a public position could answer the “Woman Question,” speculative biology had impaired thinking. But everyone knew what a man was.

At section (d) we must pause. “‘Female’ means a person, belonging, at conception, to the sex that produces the large reproductive cell.” Section (e) defined “male” in the same manner, with the exception that it is the sex that produces the small gamete. Does this EO purport to define personhood as beginning at conception? At the very least it is too close to doing so. Obviously, the radical feminists were not at the drafting table. This lightening bolt reverberated and set off an internal alarm.

The EO continued on, addressing the subjective, mutable nature of gender identity as a sense of self. It instructed all federal agencies to remove all statements, policies, regulations, forms, communications or other internal and external messages that promote or include “gender identity” and directed that all forms that require a person’s sex would only include male or female. The EO cleaned up the Obama and Biden administrations interpretation of the Supreme Court case, Bostock v. Clayton County (2020) and the application of the case to Title IX. (By the case’s own terms Bostock does not apply to Title IX).

One of the lightening bolts that hit some members of the public hard was section 3 (g), which eliminated the funding of anything that promoted gender identity. This could affect a significant number of programs including those in school from pre-K to graduate programs. Can an EO eliminate funding? Congress has the Constitutional power to appropriate funding. An EO cannot change what Congress has done. This is an example of how our system of checks and balances is supposed to operate. But what if Congress does not object to the President taking away its appropriation power through an EO?

Section 4 of the EO is addressed “Privacy in intimate spaces.” By now I have shaken off (for the moment) the fear of zygote personhood. This section declares that men should not be housed in women’s prisons or detention centers. This felt like a big victory. The Women’s Liberation Front (WoLF) of which I am a board member, has been fighting the prison issue in court whenever it can.

You can read about the lawsuit and hear from some of these women directly, here: Women in Prison with Men

Women’s rights advocates had won the right for women to be housed separately from men in the 1870s. One day though, people forgot why. California has one of the worst laws for women regarding gender identity. In the imagination of most people, the transgender prisoner is a mild-mannered, slight, feminine, probably gay, quiet, harmless male. Who would want to make him suffer the brutality of a male prison?

But in California all a male inmate has to do is indicate that he identifies as transgender or non-binary and he may be transferred to the women’s prison even if he is intact (most men who identify as women are intact) and had never taken a wrong sex hormone. Even if the identification developed for the first time right after being arrested for a heinous crime such as murdering his girlfriend and child. Even if he had the build of a premier male bodybuilder. Most women in prison have a history of trauma at the hands of men. Our litigants are constantly on high alert. They are afraid of reporting problems because they fear, with good reason, retaliation from prison officials or the trans-identified male prisoners.

It took just a week before gender identity advocates filed the first lawsuits. On January 26 a petition was filed in the Federal District Court in Boston, called Moe v. Trump. The prisoner sought a temporary restraining order (TRO), meaning that he wanted the court to put the EO on hold until the claimed constitutional issues were resolved in court. The court found that irreparable harm would come to the prisoner if he was not housed in a female prison. This repeated in two other federal district courts, ultimately covering the 16 trans-identified federal prisoners reported to be housed in women’s prisons.

Each petition for a restraining order was filed under a pseudonym and redacted the location of the facility. The nature of the inmate’s crime was never mentioned. This makes it very hard to help the women incarcerated with these men. A lawyer who might want to check in with the women in the facility does not even know what geographical area they are in without some identifying information.

More EOs involving gender issued rapidly. One banning people identifying as the opposite sex from military service was recently stayed by a court. A group of trans-identified active duty service members and prospective enrollees filed for a preliminary injunction to stop the ban on their service in the military. The judge imposed the TRO and applied it to all service members and prospective enrollees who would fall within the prohibition. If you want to read the 70 page opinion in Talbott v. The United States, here is a link, Court order.

Two other challenges have been raised to the EO banning trans-identified people from serving in the military, Ireland v. Hegseth and Shilling v. Trump, but no action has been taken on the request for a TRO. There may not be one forthcoming, as the order in Talbott serves to protect everyone who may be subject to the EO.

An EO requiring accurate statistics based on sex rather than gender identity has been challenged in two courts, you can read about them here: Jones and Orr. I think this is very important. Without accurate statistics, “women’s” crime rate rises significantly. As it turns out, male pattern criminality is not mitigated by any degree of transitioning.

While we are in Greece, discussing Zeus, the Supreme King of the Gods of Mt. Olympus, and home of the Olympics, I would be remiss if I did not mention Tirrell v Edelblut, a challenge to the EO that prohibits men and boys from playing in women and girls sports. But even that would not have helped the women boxers at the 2024 Olympics. Although the Olympics were dedicated to The Supreme King God Zeus, to honor his glorious victory over his father Cronus, the US president cannot control the Olympic games. No temporary restraining order has been issued yet, but it also has not been denied. You can read more about the complaint here: Sports Complaint.

There are two challenges to the EO’s prohibiting funding for hospitals that engage in pediatric sex trait modification. (Otherwise known as “gender affirming care” or GAC). They are Washington v. Trump and PFLAG v. Trump, in both cases the judge issued the restraining order sought by the petitioners. PFLAG applies nationwide.

What will become of human females?

I have been thinking about the various ways all of this litigation could conclude. It could be slow, prolonged, and tedious, or it could be lightening fast. Sometimes I find it difficult to discern whether the stays issued by the courts have been complied with. It seems that at least some of the EOs are still being followed by employees. What happens if the executive won’t follow a court order?

Yesterday the administration filed an emergency appeal with the Supreme Court, seeking to overturn a lower court stay on Trump’s use of the Alien Enemies Act of 1798 to deport undocumented Venezuelans. Challengers to his use of the law have until Tuesday to file responses. https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/24a931.html.

Two other appeals by the administration have also been filed at the Supreme Court. One involves an order by a federal court requiring the administration to rehire thousands of federal employees. The other is an order directing the administration to pay education grants. Does filing these appeals mean that Trump recognizes the authority of the courts?

On Mt. Olympus, sometimes a council of the Gods was called to order. Even Zeus, with his immense power, was not above the council of the Gods. In particular he had to consider their advice and sometimes their decisions when it came to matters of fate and justice.

Zeus had many faults, he was jealous, arrogant, impulsive, deceptive, vengeful, vindictive, and cruel. He took what he wanted, even if what he wanted was a woman. He had several wives. His first wife was Metis. A prophecy warned that Zeus would be overthrown by a son born to Metis. To prevent the prophecy from being fulfilled, Zeus swallowed Metis. Metis gave birth inside of Zeus to a daughter, Athena. Thus the prophecy of his overthrow was never fulfilled.

How did it all end? There are a few different stories, ranging from the Gods deciding to withdraw from interfering in human lives and leaving us to ourselves, to Zeus turning his rule over to Dionysus (until Hera, another of Zeus’ wives, had Dionysus killed and ate him). In one story the reign of the Supreme King of the Gods ended when people stood up and turned away from Zeus.

I hope Trump filing an appeal with the Supreme Court augurs well for the rule of law. In the meantime, I am on the lookout for more thunderbolts.

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As I sat with the orders, and as more and more came out, and as the court cases started and kept coming, I was thinking, “Why is this so hard?” It seems to me that we have created such a complex web of law that it is almost impossible to see through it now to the basics. Federal or state court? Statute or case law? Regulation? Guidance? Rules of procedure? Proper exercise of the power granted by the constitution or overreach? I feel sad that we now have justices and judges that have the name of the president instead of their own. “Biden judge.” “Trump judge.”

Sometime in the 1990’s I went to a small conference in Marion, Massachusetts to participate in a ceremony with Margot Adler and Barbara Walker. I had a chance to talk with Barbara Walker and I told her I was looking for the Law of Women. For the law of the Goddess. She directed me to Egypt, to Ma’at’s Negative Confession.

Ma'at is the ancient Egyptian Goddess of Justice and Truth. She was worshiped in Egypt from the earliest dynasties and well beyond the Greek and Roman invasions. She was also known as the All Seeing Eye and Dispenser of Justice. Ma'at was born when the God Ra settled the waters of Nun (Chaos). Even though she was Ra's daughter, he had to answer to her because she controlled the entire universe. She bestowed order on Chaos.

Ma'at is often depicted carrying a sword and with a tall ostrich feather in her hair. These items symbolize Justice and Truth. Another symbol of Ma'at is a stone platform or a foundation, representing the stable base on which order is built.

Ma'at controlled the laws of nature, the seasons, the water, the oceans, and the cycle of life of the animals. She controlled all life and death and kept everything in balance. Even the gods praised Ma'at and lived by Ma’at. She is also known as the goddess of rhythm, blind law, and wisdom. Other deities were said to feast on her wisdom. Ma’at’s principles were “goodness to the suffering” and “justice with no trace of vengeance.” Ma'at means truth and also translates to "that which is straight.” Ma'at is an Egyptian word for mother and matter.

Ma'at judged the dead in the Hall of Ma'at (the Double Halls of Truth). Egyptians believed that she would use her scales and weigh their soul or heart against an ostrich feather or against Ma'at herself. If the heart or soul was light, meaning that it was free of sin, then the scales would be balanced and the deceased would reside with the gods. If the soul or heart was heavy, the deceased was determined not to have lived a life of consistent with the principles of Ma'at. Rather than reside with the gods, these people were eaten by the Demon Goddess of the Underworld, the Devourer of the Dead, Ammit.

The Egyptians believed that everything in the universe was ordered or that there was a pattern to the universe and Ma'at was responsible for the order and the pattern. The Greeks later referred to the pattern as Logos, meaning truth, justice, and reason.

Egyptians tried to live by The 42 Admonitions of Ma'at, which was also known as Negative Confession. The Negative Confession predates the ten commandments by 1500 years.

Below is Ma’at’s Negative Confession. I have gently updated the language, as many have done before me, so that the confession is relevant to the era in which we live. When I feel I am living in Chaos, I am calmed by Ma’at’s Negative Confession.

Maat’s Negative Confession

I have not turned the earth without cause.

I have not taken milk from the mouths of children.

I have not made anyone hungry by means of my greed.

I have not deprived a humble person of their property.

I have not exploited anyone.

I am pure.

I have not disturbed the air without cause.

I have not befriended evil people.

I have not demanded undo praise for my name.

I have not destroyed any just person’s work.

I have not driven anyone to act against another.

I am pure.

I have not extinguished the fire in its season.

I have not done anything that is hateful in the eyes of the gods.

I have not stolen offerings from the altars of the gods.

I have not committed unclean acts in the sanctuaries of the gods.

I have not turned away from god in fear or shame.

I am pure.

I have not held the back the water in its season.

I have not caused misery to those around me.

I have not inflicted suffering or pain.

I have not made anyone weep with sorrow.

I have not committed evil against mankind.

I am pure.

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Deny Her

Ignore Her

Shame Her

Silence Her

Shun Her

Contain Her

Breed Her

Control Her

Scare Her

Terrorize Her

Hurt Her

Kill Her

Be Her

Since Dobbs there has been a lot of discussion about reviving and publishing the ERA. It is not at all clear to me that it can still become law at this point. The reasons it would not likely make it all the way to being enshrined as an Amendment in the Constitution are complicated and technical. And not the point of this post.

Advocates have argued that if we had the ERA, women would have reproductive rights, including the right to an abortion. I do not think that would prove to be true. When the 1972 Amendment was introduced, second-wave feminists were fighting for “formal equality.” That meant “equal to men.” As good as men. The relevant text of the ERA says “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Formal equality would not provide women with the right to decide whether to terminate a pregnancy. After all, we would be equal to men. And men do not have a right to an abortion either. This may sound like a specious argument, to which I say, read the 1974 Supreme Court case Geduldig v. Aiello.

We need something better. We need sovereignty as women, substantive equality, and protection of our sex-based differences.

When I took constitutional law and learned how the Supreme Court applied the Equal Protection Clause of the Fourteenth Amendment to women, I was aghast. It was 1983, I was 24 years old, and I had grown up watching women break out of confinement and be granted right after right. I had witnessed depressed and frustrated grandmothers, mothers, and aunts, as they tried to find their own life within marriage. And, if they did not marry, try to make peace with living with their parents or other extended family.

I learned in constitutional law that any law that discriminated among classes of people was subject to one of three different levels of review by the court: strict scrutiny, intermediate scrutiny, and rational basis review. Race, alienage, and national origin were considered “suspect” classes and received the most exacting review, which was called strict scrutiny. because of our history of race discrimination. Strict scrutiny means that the law being reviewed must be narrowly tailored to meet a compelling governmental interest. But sex only received intermediate scrutiny and is considered a “quasi-suspect class.” Intermediate scrutiny requires a law to have a substantial relationship to an important governmental purpose. Classifications not tied to historic discrimination, such as age, economic status, and professional or social class required only rational basis review. Rational basis review means only that a law must be rationally related to a legitimate government interest.

Having watched the difficult struggle for women’s rights as a young girl, I did not understand why women received only intermediate scrutiny review.

Women’s rights were achieved statute by statute and case by case. In 1964, we earned the right to equal employment under Title II of the Civil Rights Act. Other rights we obtained included an equal right to be an administrator in an estate, the right to work as hard as men, the right to apply for jobs only available then to men, the right to equal pay, the right to have a credit card, the right to seek a no-fault divorce, the right to use contraception if married, the right to an abortion, the right to equal housing and credit, the right to work while pregnant, the right to obtain unemployment benefits during the last three months of pregnancy, the right to work while a mother, and the right to be on a jury. In 1972, Title IX of the Civil Rights Act was passed, and women obtained the right to equal access to education. Title IX reads:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

From this education provision women’s sports came to life. Until then, there were very few women’s collegiate or high school sports teams and only 7% of women or girls participated in sports.

The Equal Protection clause of the Fourteenth Amendment states in section one:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

We were declared “persons” by the Supreme Court in Reed v. Reed in 1971.

Seeking equality with men, women’s rights advocates in the 1970s and 1980s pushed for strict scrutiny analysis under the Equal Protection clause, and, on another front, argued for the passage of the Equal Rights Amendment.

But women never achieved the right to have laws that discriminated against them subject to “strict scrutiny.” Supreme Court Justice and women’s rights advocate Ruth Bader Ginsberg once stated that there was no practical difference between what had evolved in the courts and the ERA. In 1996 in one of Justice Ginsberg’s most important opinions for women’s rights, U.S. v. Virginia, she wrote “physical differences between men and women, however, are enduring: ‘[T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both.’” Nevertheless, she held that under the equal protection clause, applying an intermediate scrutiny test, Virginia did not have a sufficient reason to bar women from admission to the Virginia Military Institute.

Another argument made in support of the ERA is that, had it passed, women and girls would not have to contend with men and boys on their sports teams or in their locker rooms. That argument cannot withstand a close analysis. Massachusetts provides us with an example.

The Massachusetts equal rights amendment, passed in 1977, provides that “Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.” In 1977 the Supreme Judicial Court of Massachusetts answered a question from the House of Representatives about whether the equal rights amendment would render a proposed bill unconstitutional. The bill would have prohibited women from participating with men in certain contact sport teams. Justice Kaplan, writing for the court answered the question. “The absolute prohibition in the proposed legislation cannot survive the close scrutiny to which a statutory classification based solely on sex must be subjected. A prohibition of all females from voluntary participation in a particular sport under every possible circumstance serves no compelling State interest.” But the Supreme Judicial Court was not finished with sports.

In 1979, in Attorney General v. Massachusetts Interscholastic Athletic Association, Inc., the Supreme Judicial Court of Massachusetts addressed whether a rule drafted by an interscholastic athletic association would survive under the Massachusetts ERA. The rule provided that boys may not participate in girls’ sports, even if boys had no comparable sport. The court applied “close scrutiny” (which the court equated to strict scrutiny) and held that any rule prohibiting a boy from playing on a girls’ team was invalid under the state equal rights amendment and a state statute barring sex discrimination in educational sphere. Justice Kaplan, also writing this majority, even pondered whether protecting girls in sports would be paternalistic.

This is why I don’t think that the ERA will solve the problem of women’s lack of sovereignty, be it abortion rights or sports of our own. All it will provide is formal equality. Women need something better. We are equal to men. But, we are also different from men in very specific ways that deserve legal recognition and protection. For now, we have intermediate scrutiny because sex is different than race and sometimes sex matters.

There are a few twists today, however. One of the earlier arguments against the ERA was that women would be forced into unisex bathrooms with men. Most advocates for the ERA thought that was ridiculous and a mere attempt to scare women. We thought it would not happen. Yet, even without the ERA, it has happened.

And, if the United States Supreme Court decides in U.S. v. Skrmetti, argued on December 4, 2024, that “transgender status” requires intermediate scrutiny, what happens to women’s rights? What happens to the classification of woman? Sometimes legal fictions are created in law, corporate personhood, for example. A majority of the Supreme Court could make a decision that legally renders our sex-based, biological reality a relic of a bygone time.

Women have an inherent right to sovereignty, substantive equality, and protection of our sex-based differences. Women require, and must demand, more than an equal rights amendment.

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