Coverture 2.0
Rebooting a legal regime of enforced dependency
Happy Wednesday!
This is the last of three posts about women and property (at least for a week or two 🤷🏻♀️), and we’re ending with a post about the return of coverture. The idea of coverture has been in the Substack atmosphere lately, and I’ll take any opportunity to talk about coverture (I’ve written about it here and here). So, let’s do this.
We’re in a new era of coverture. It’s true. All signs point to the onset of a period defined by attenuated legal rights for women. Coverture 2.0, however, is more than a return to the patriarchal household. Coverture, in its modern redesign, is a framework of legal oppression and disempowerment specifically crafted to erode the legal advances that gave women property rights.
Coverture 1.0: erasing women’s identity within marriage
Let’s recap. Coverture was never one law or one rule, it was a set of customary practices that became encoded in law over time. These rules, based on feudal Norman practices, were connected through a common core: establishing that a husband and wife were one single person in the eyes of the law. In 1765, the rule was clearly stated by Sir William Blackstone, in a famous passage from the first volume of his influential Commentaries. His description, heavily cited by subsequent treatises writers and courts, was this:
By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-French a feme-covert.
A married woman could not sue or be sued; she could not form contracts or buy and sell property apart from her husband. Moreover, once a woman was married, any property that the woman brought to the marriage came under the control of her husband.
While coverture implicated all aspects of a married woman’s life, it was conceived of as primarily impairing a married woman’s property rights. Other forms of oppression were seen as flowing from this primary legal disability. Confirming property as the critical component of coverture, the Married Women’s Property Acts supposedly ended its reign. Obviously, reports of coverture’s death were greatly exaggerated.
Coverture 2.0: erasing women’s visibility in institutions
Coverture 2.0 is different. In its new form, coverture is not so much an attack on the rights of women to own property within marriage. Instead, coverture 2.0 targets the ability of women to earn income and therefore accumulate property outside of marriage. The through-line is that coverture is still centered on property rights. The technology of coverture - old and new - works by eroding rights providing access to economic independence for women, in hopes of redirecting them into gendered forms of dependency. The new coverture accomplishes these goals by rendering women invisible in the workplace rather than in a marriage.
But what, you ask, does coverture 2.0 look like on the ground? Well.
There are new obstacles for women in getting hired. Recent executive orders and U.S. Supreme Court decisions have taken aim at diversity, equity, inclusion, and belonging (DEIB) initiatives. These programs, aimed at ensuring equitable hiring and promotion, provide institutional frameworks to help operationalize equal protection goals. Without these programs in place, guiding ideals of equal access and opportunity falter, stymied by biased processes and forms of assessment. Women, especially nonwhite women, and other marginalized workers suffer.
Workplaces are becoming increasingly inhospitable places. Even if women do get hired, the workplace is becoming more inhospitable. The administration is actively undermining the Equal Employment Opportunity Commission and the Office of Federal Contract Compliance, weakening enforcement against workplace discrimination and harassment by eliminating certain discrimination claims. Threats have been made to the implementation of the Pregnant Workers Fairness Act, and recent proposals to strip minimum wage and overtime protections from millions of domestic workers have deleterious effects on a workforce heavily composed of women, Black women in particular.
Equal access to credit opportunities is diminishing. Recently, the administration introduced significant regulatory changes that roll back protections for women and other protected groups under the Equal Credit Opportunity Act. Again, the proposed changes would eliminate certain discrimination claims and make it harder for women (and others in protected categories) to get credit and on the same terms as white men. New rules would also create a blanket prohibition on using sex or marital status when determining eligibility for special lending programs, thereby sharply limiting the ability of lenders to expand credit offerings for women-owned businesses or underserved communities.
In all these areas, there is a legal through-line. The specific mechanism for enforcing women’s invisibility within institutions is the elimination of disparate impact claims. Disparate impact claims allow individuals to seek legal recourse when seemingly neutral laws have an adverse effect on women or other people in legally protected categories. Eliminating these kinds of claims allows for systemic bias to remain invisible and grow unchecked. And that was the goal of Executive Order 14281, Restoring Equality of Opportunity and Meritocracy, which directed federal agencies to eliminate the use of "disparate impact" as a legal theory.
So, while the soft sell for coverture 2.0 is being done by social media influencers, tradwives, and MAHA supporters, the hard lines of legal inequality are being drawn elsewhere. The actual infrastructure of coverture 2.0 is being built over the remains of anti-discrimination law. What follows this constriction of property rights, as coverture 1.0 taught us, is the narrowing of possibility in all areas of life.
Where do you still feel like your legal or financial identity is “covered” by someone else’s? How do you experience your economic and property rights being called into question in the current moment? Help these 'Coverture 2.0' moments in the comments.
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And, if you enjoyed this post, you may be interested in learning more about my forthcoming book, The House that Family Money Built, which discusses geographic concentrations of both wealth and poverty. These posts 👇🏻 are a good place to start.
Not to mention the movement by some on the conservative religious right for a “household vote“ and to repeal the 19th amendment, as part of patriarchal household rule!
Another contributing factor - making professions that are heavily female-dominated "non-professional", pushing students who are pursuing those professions to seek private loans over the limited loans that are available, if at all. Nurses? Educators? Social Workers? No longer considered "professional."