By Sarah Clemens

Nearly 50 years after the decision in Reed v. Reed, are Idaho women treated equally under the law? A look at the history of gender equality in Idaho legislation and where the legal treatment of women stands suggests that Idaho has made progress repealing facially discriminatory laws. Yet, even absent patent discrimination, there remains latent inequality in both the historical laws that remain in effect and in newly proposed legislation.

Idaho’s History and Sally Reed

“[M]ales must be preferred to females[.]”[i] Today, this language runs afoul of the Fourteenth Amendment’s Equal Protection Clause, but before 1971, gender preferences in statutes were commonplace. Sally Reed learned this upon the tragic suicide of her minor son, Skip, when the probate judge appointed Sally’s ex-husband, Cecil, as administrator of Skip’s estate—denying Sally’s petition without a hearing. The story of Sally Reed is well known in Idaho, and because of Ruth Bader Ginsburg’s involvement in the case, the story of an Idaho woman denied the equal opportunity to act as the administrator of her deceased son’s estate is equally well known throughout the country.

Sally was qualified to administer Skip’s estate. She worked from home caring for disabled individuals, and she cared for her son when Cecil abandoned her and their young son. Cecil, on the other hand, was abusive, and Skip ultimately committed suicide in Cecil’s basement with his rifle.[ii] Even so, under Idaho’s law, a preference was afforded Cecil based on gender to administer Skip’s estate.

Sally Reed appealed, employing Allen Derr and later receiving the assistance of Ruth Bader Ginsburg, who authored the brief to the United States Supreme Court. Sally Reed succeeded, knocking down the first of many barriers for gender equality that Ruth Bader Ginsburg would challenge to define gender as a suspect class.

Reed v. Reed no doubt changed how gender-based classifications were addressed under the law. Though the probate law at issue in Reed set the stage for gender equality across the U.S., Idaho’s history with gender equality was not so straightforward. Certainly, the probate law at issue in Reed was rewritten and many other gender-based classifications changed in Idaho during the 1970s. Yet even after Reed, legislation in Idaho continues to be drafted even today with gendered language, and the failure of some proposed legislation suggests that Idaho is not yet ready to proceed beyond the protections afforded women under Reed and its progeny.

Idaho has come a long way, and in many respects, has led the way, in enacting legislation that provides equal rights to women. That said, the path to equality for women in Idaho had a checkered past and the path that lays ahead remains long. For the many advancements that individual women made, many laws enacted throughout Idaho’s history have held women back.

No doubt one of the marked achievements for women’s rights in Idaho was the enfranchisement of women to vote. The Nineteenth Amendment to the United States Constitution recently celebrated its 100-year anniversary. In Idaho, however, women had gained the right to vote nearly a quarter-century earlier.[iii] In 1896, Idaho became the fourth state to grant women the right to vote, preceded only by Wyoming, Colorado, and Utah. Despite Idaho’s seemingly early recognition of women’s rights, the right to vote was not absolute. Poll taxes and literacy tests prevented minority men and women from voting for decades longer, and Native Americans were ineligible to vote at all until 1924.[iv]

In 1969 and 1972, the Idaho legislature passed two laws, Idaho Code §§ 18-7303[v] and 67-5909,[vi] both aimed at preventing discrimination on the basis of sex in employment practices. Even so, much of Idaho’s early legislation was aimed specifically at separating women on the basis of their sex. Consider this non-exhaustive timeline of legislation and case law during the late 1800s and early 1900s.

• 1800s – If a wife predeceased her husband, all community property passed to her husband, but if the husband predeceased his wife, she received half and the remaining half was disposed according to his wishes.[vii]
• 1887 – Women were granted the right to make a will by statute under Sec. 5725.[viii]
• 1899 – The Idaho Supreme Court affirmed there is no statutory right for women to make holographic wills and any will by a woman must be attested, witnessed, and proved.[ix]
• 1908 – Married women were not considered capable of committing crimes, except those punishable by death, if the woman was acting under the threat, command, or coercion of her husband.[x]
• 1919 – While married, the husband was considered to maintain absolute control over community property.[xi]
• 1924 – Women were not allowed to serve as jurors.[xii]
• 1932 – Idaho Code recognized that married women are not deprived of civil liberty to execute a contract, but a married woman may not have the same rights to enter into contracts as an unmarried woman.[xiii]

The timeline, though abbreviated, underscores the evolution of women’s rights in Idaho. As Reed v. Reed and later cases brought by Ginsburg before the Supreme Court demonstrated, discrimination on the basis of sex is unconstitutional, and Idaho’s place in that historic recognition remains vital. Yet just as Ruth Bader Ginsburg looked at Reed as the starting place for gender equality rather than a successful place to end the fight, Idaho’s treatment of women as equal remains far from complete.

In the Brief for Appellant filed before the United States Supreme Court in Reed v. Reed in 1972, Ruth Bader Ginsburg agued, “appellant was denied the right to qualify as the administrator of her son’s estate solely because of her sex.”[xiv] Nearly 50 years later, has Idaho attained the degree of gender equality that began Ruth Bader Ginsburg’s pursuit of intermediate scrutiny? Examining recent legislation and existing laws suggests the answer is: not quite.

Equal Rights Amendment

The same year the United Supreme Court issued its ruling in Reed, Idaho was in the news for a second potential step forward in women’s rights: the ratification of the Equal Rights Amendment.[xv] As one of the first states to ratify the amendment, the initial approval signaled a major step toward equal treatment for women under the law. Yet by 1979, Idaho voted to rescind its ratification, along with four other states. In committee minutes from the measure to rescind, then-Representative for Idaho Falls, Lenden Batmen stated, “[l]aws involving relationships between the sexes is an area where reasonable men may differ.”[xvi]

Despite the rescission, the amendment was reintroduced earlier this year by Representative Melissa Wintrow. Under the joint resolution, Wintrow’s proposal would amend Article 1 of Idaho’s constitution to provide for sex equality and prohibit inequitable treatment based upon gender. In opposition to the amendment, the Family Policy Alliance of Idaho released a statement that said, in part, the amendment would “prevent[] state and federal laws from making any distinctions based on sex.”[xvii] The statement went on to claim that if Idaho were to adopt the Equal Rights Amendment, “women could suddenly become eligible for the draft, and women’s federally funded shelters and prisons would have to allow men access.”[xviii] The bill to amend Idaho’s constitution ultimately failed to make it out of committee.

Gender-Neutral Legislation

The Equal Rights Amendment is not the only recent proposal before Idaho state legislators to address gender equality. In February 2016, Representative Wintrow also introduced House Bill 465, which would have amended Chapter 1, Title 73 of Idaho’s Code to add section 73-114B requiring that any new or amended sections to Idaho Code contain gender-neutral language.[xix] The bill received support from Representative Smith of Pocatello, which would also require that legislation use words such as “he/she” or “his/her” rather than masculine pronouns.

Though the bill narrowly received the votes necessary in committee to introduce it, the proposed change to the Idaho Code was met with significant resistance and advanced no further. And though this legislation would create an affirmative responsibility for lawmakers to draft all legislation in gender-neutral language moving forward, there have been some incremental changes to prior legislation. For example, for legislation that use the words “man/wife,” Idaho lawmakers have supplanted the gendered terms with the word “spouse.”

Gender-neutral language within the Idaho Code may seem inconsequential in the advancement of gender equality, but the use of gendered terms is precisely why Reed—and the plaintiffs from the other cases argued by Ginsburg—was disadvantaged; the language of the legislation separated out women for disparate treatment based solely on gender. This type of reform remains a focal point for change by many within Idaho’s legislature.

Both the Equal Rights Amendment and House Bill 465 are representative of a nationwide trend by state legislators to revise state statutes, state constitutions, and local codes to ensure the legislative language is gender neutral. To be clear, using gender-neutral terms in a statute does not automatically confer gender equality and equal rights upon women under the law. That said, the use of gender-neutral language is perhaps the first and easiest step that state legislators can take to remedy the representative disparities under the law, which is why many states have made significant efforts to revise state codes and local ordinances. Since 1983, Washington State has required gender-neutral language in all new pieces of legislation, and the state is also undertaking an extensive revision process to modify all existing state statutes dating back to Washington’s founding in 1854. Washington is not acting in isolation, however. In 2019, the city of Berkeley in California adopted an ordinance to remove gendered language from its municipal code.[xx] The city unanimously adopted the ordinance, which will cost the city $600 to update the language. Moreover, the National Conference of State Legislatures reports that nearly half of all states have sought to revise statutory language so that it is gender neutral.

Eliminating gendered language in legislation is a step forward, but the question necessarily turns to what impact merely modifying a statute from a masculine pronoun to gender-neutral language has on efforts to advance gender equality.

According to the National Women’s Law Center, the impact may be profound. “Words help shape our perception about what opportunities are available to women and men.”[xxi] Put simply, if women are not recognized in the language of the law, then society and the legal community may struggle to view women’s protections and rights under the law. And in some cases, the absence of gender-neutral language in the statute may bar relief, absent an appeal to a higher court. The examples of this principle are reflected through the cases that Ruth Bader Ginsburg argued during the 1970s.

Idaho Laws Moving in the Wrong Direction

Though gender-neutral language in Idaho legislation presents an important if not subtle avenue through which to advance gender equality, an equally important area is within the purpose of the legislation. Two bills recently enacted in the Idaho Legislature suggest that though the rights of women have progressed in many ways since Reed, in other ways pursuit of these rights remains an area of concern.

Consider Idaho’s Medical Consent and Natural Death Act. Idaho Code section 39-4510 authorizes any “competent person” to execute a living will. Section 39-4509 defines the statement of policy for the legislation:

The legislature recognizes the established common law and the fundamental right of competent persons to control the decisions relating to the rendering of their medical care, including the decision to have life-sustaining procedures withheld or withdrawn. The legislature further finds that modern medical technology has made possible the artificial prolongation of human life beyond natural limits.[xxii]

Yet while this legislation explicitly recognizes that any competent person has a fundamental right to control decisions pertaining to medical care, section 39-4510 provides that pregnant women may not enact a living will. A lawsuit is pending to challenge the language excluding pregnant women from the statute on the basis the bill discriminates on gender. The lawsuit, originally filed in 2018, was brought by Legal Voice and Compassion & Choices on behalf of four Idaho women. The groups argue that women do not lose their constitutional rights because they are “diagnosed as pregnant,” which is language from the statute. In late 2019, a federal court rejected a motion by the State to dismiss the case. The case remains pending.[xxiii]

More recently, Idaho took an affirmative—if not currently hypothetical—step toward impeding a woman’s fundamental right to privacy related to legislation that would criminalize abortion.[xxiv] Governor Little signed the law in March of this year and it would become effective should the United States Supreme Court overturn Roe v. Wade. As it stands, the bill makes no exceptions for a woman seeking an abortion in cases of incest or rape and permits the prosecution of doctors who would perform abortions.

ConclusionReed vs. Reed changed the legal landscape for women in Idaho and throughout the nation; the case served as a starting point for Ruth Bader Ginsburg to argue that sex discrimination should be viewed as a suspect class. In many ways, nearly 50 years later, Reed remains just that: a starting point. Though the treatment of women under the law is markedly different now than it was in 1971, many women still do not see themselves as equally protected. And some women would be forgiven for questioning whether Idaho’s legislation is advancing the treatment of women, or whether it is retreating to a time when women did not have the right to privacy for abortion or the right to decide on end-of-life of care. Idaho has come a long way. It has further to go.

Sarah Clemens is a 3L law student at the University of Idaho College of Law. She is interested in practicing criminal law after completing a judicial clerkship upon graduation. In her free time Sarah enjoys fiction writing and spending time with her rescue animals.

[i] Reed v. Reed, 404 U.S. 71, 73 (1971).

[ii] Emily Martin, Reed v. Reed at 40: A Landmark Decision, Nat’l Women’s Law Ctr. (Nov. 16, 2011), https://nwlc.org/blog/reed-v-reed-40-landmark-decision/.

[iii] Kathy Barnard, Women’s Suffrage Right to Vote Came Early in Idaho, Lewiston Tribune (Jul. 3, 1990), https://lmtribune.com/feature/womens-suffrage-right-to-vote-came-early-in-idaho/article_d6e0296a-ba14-59fe-87e4-2789689dcf38.html.

[iv] Donna Yule, Even 100 years after the right to vote, women still fighting for rights, Idaho Statesman (Jan. 16, 2020), https://www.idahostatesman.com/article239242533.html.

[v] Idaho Code Ann. § 18-7303 (West 1972) (recognizing the denial of the right to work based on sex as discrimination).

[vi] Idaho Code Ann. § 67-5909 (West 2005).

[vii] Luis Acosta, Inheritance Laws in the Nineteenth and Twentieth Centuries,Library of Cong. (Mar. 2014), https://www.loc.gov/law/help/inheritance-laws/historical-inheritance-laws.pdf.

[viii] Scott v. Harkness, 6 Idaho 736, 736, 59 P. 556, 556 (1899).

[ix] Id. at 736, 59 P. at 557.

[x] Idaho Code Ann. §§ 17-201(7), 17-807 (1932).

[xi] C.S.§ 4668 (1919).

[xii] State v. Kelley, 39 Idaho 668, 668, 229 P. 659, 661 (1924).

[xiii] Idaho Code Ann. §28-101 (1932).

[xiv] Reed v. Reed, 1971 WL 133596, at *8 (U.S., 2004).

[xv] Betsy Russell, A look back at Idaho’s role in the ERA ratification saga, Post Register (Dec. 16, 2019), https://www.postregister.com/news/government/a-look-back-at-idaho-s-role-in-the-era/article_6b4c6b1d-9770-5473-a889-ec749517b68f.html#:~:text=In%201972%2C%20Idaho%20was%20among,31%2D4%20in%20the%20Senate. 

[xvi] Betsy Russell, Utah’s Recent Ratification of Equal Rights Recalls Idaho’s History, Spokesman Review (Dec. 15, 2019), https://www.spokesman.com/stories/2019/dec/15/eye-on-boise-utahs-recent-ratification-of-equal-ri/.

[xvii] Stephanie Curry, Erasing Women—The ERA, Family Policy Alliance of Idaho, https://familypolicyalliance.com/issues/tag/era/ (last viewed Oct. 18, 2020).

[xviii] Id.

[xix] H.B. 465, 61st Leg. (Idaho 2016).

[xx] Caitlin O’Kane, City to ban gendered language like “manhole,” “manpower” and “firemen,” CBS News (Jul. 18, 2019), https://www.cbsnews.com/news/berkeley-california-to-ban-gendered-language-like-manhole-manpower-and-firemen/.

[xxi] Brian Peteritas, Gender-Neutral Language Written into State Laws,Governing (Apr. 2013),https://www.governing.com/topics/politics/gov-gender-neutral-language-rewritten-into-state-laws.html.

[xxii] Idaho Code Ann. § 39-4509 (West 2012) (emphasis added).

[xxiii] Rebecca Boone, Idaho sued over pregnancy exclusion in advanced directive law,Assoc. Press (May 31, 2018),https://apnews.com/article/824dae6a669147cd88d53c0e690adf09.

[xxiv] S.B 1385, 65th Leg. (Idaho 2020).