American political mythology boasts a fairly well known story about the inclusion of sex as a protected category in the 1964 Civil Rights Act. Title VII of that act forbids discrimination in employment on the grounds of race, creed, color, or national origin as well as sex. It is the only provision of the original act to incorporate the word sex. Popular lore holds that sex was added to this title of the bill as something of a joke. 1 And in fact there is significant evidence that Howard Smith, chair of the powerful House Rules Committee, a Virginia Democrat, and an ardent segregationist, believed that adding sex would discourage some members of the Congress from voting for civil rights for African Americans. Smith “really wanted to kill the civil rights bill, ” recalled Assistant Secretary of Labor Esther Peterson. 2 Adding sex would focus attention on what he believed was a ridiculous effort to alter long-standing habits of mind with regard to racial beliefs.
Smith had good reason for derision. No fair employment practices bill had become law since 1941. Only once—in 1951—had such a bill made it through even one of the two houses of Congress. When it came to the floor, opponents attempted to subvert it by tossing in clauses to forbid discrimination on the basis of political affiliation, physical disability, and sex. Though the bill passed in the House, the Senate had turned it down flat.
Smith knew his history. Perhaps he hoped to repeat it. In December 1963, the National Woman's Party, which for forty years had fiercely advocated an equal rights amendment to the Constitution, sent messages to several members of Congress asking them to add the word sex to the new civil rights bill. This had been its practice for many years. Whenever the opportunity offered, the NWP had suggested that sex be included along with every other category against which discrimination was enjoined. Generally, its pleas were disregarded. But this time when the group broadcast its appeal to add the word sex,