Violence Against Woman Act Is Back, but It’s Still No Better. Here Are Its 5 Biggest Flaws.

COMMENTARY Gender

Violence Against Woman Act Is Back, but It’s Still No Better. Here Are Its 5 Biggest Flaws.

Feb 15th, 2022 5 min read

Commentary By

Sarah Parshall Perry @SarahPPerry

Senior Legal Fellow, Meese Center

Jessica Anderson @JessAnderson2

Executive Director of Heritage Action for America

While the 2022 version is being hailed as a compromise, it is anything but. Alvaro Medina Jurado / Getty Images

Key Takeaways

In the very spaces where women need protection the most, they would be forced to share intimate spaces with men who identify as women if this bill is enacted.

The Senate hasn’t justified carve-outs for “underserved populations,” and to include, for example, nonbinary individuals or homosexual men alongside women.

The 2022 Violence Against Women Act reauthorization does nothing to protect the interests of biological women, equality, the unborn, or the rule of law.

The Violence Against Women Act is once again up for debate and a vote in the Senate.

The previous iteration of the bill failed last year, having stalled in the Senate after complaints concerning the bill’s handgun restrictions, carve-outs for LGBTQ groups, stealth “gender identity” inclusions, and the constitutionally prohibited expansion of the jurisdiction of Indian tribal courts. That’s why its sponsors went back to the drawing board. Unfortunately, what they “redrew” isn’t good enough.

While the 2022 version is being hailed as a compromise, it is anything but. The primary difference? The reader must wade through 100 more pages—335 in total—than the 2021 version, and carefully read between the lines to see which problematic provisions have been moved where.

Much of the language has been changed to hide the most noxious provisions. But the effects are precisely the same.

Here are the Violence Against Women Act’s biggest flaws:

1. Gender Identity

Because “gender identity” is a favorite leftist dog whistle, it appears in the current version of this bill. The stealth inclusion of “gender identity” under sex-specific provisions, particularly as concerns single-sex spaces like federal prisons and shelters for battered women, is nothing but a political power play.

In the very spaces where women need protection the most, they would be forced to share intimate spaces with men who identify as women if this bill is enacted. This does nothing to protect the safety of women who bear the disproportionate brunt of domestic abuse and sexual assault statistics in this country.  

The current bill text also makes no provision for a religious exemption that might be exercised by faith-based homeless or battered women’s shelters who refuse to sacrifice their faith on the altar of “gender identity.” This would naturally exclude them from participation in Violence Against Women Act grant programs if, for example, their arrangements maintain designated spaces for men and women.

Since the Violence Against Women Act was reauthorized and signed into law by President Barack Obama in 2013, gender identity protections have appeared alongside traditional sex-based distinctions. This should be the year those classifications end.

2. Equity Over Equality

The 2022 Violence Against Women Act’s new buzzword is “culturally specific communities”—code for special-interest groups. The term appears in tandem with companion statements on “improving equity and reducing disparities,” perpetuating another favorite left-wing narrative that while the Constitution guarantees the “equal protection of the laws,” what matters instead is “equity,” or, giving one individual enough of a resource to ensure everyone ends up in the same place.

As to what criteria are used to establish that one party is disadvantaged, or what standards or remedies must be applied to ensure equity is accomplished, no one can say. The Senate can choose which party is disadvantaged, the result it wants, and how much money it wants to spend to get there. And in this case, that amount is jaw-dropping.

The unfortunate reality is that the government would be left to its own devices in determining what “equity” would look like. Knowing that this administration previously permitted the use of racial classifications in the distribution of COVID-19 relief in the interests of equity, for example, it has often looked like a violation of civil rights law.

3. Price Tag

The previous Violence Against Women Act was funded to the tune of $578 million. But the current bill proposes a whopping $750 million for a host of programs, many of them driven by and toward special interests. This represents a stunning 30% increase from previous funding at a time when inflation and the national debt are at an all-time high.

This also presupposes that the previous Violence Against Women Act funding has run out, which it most certainly has not. In fact, the Office on Violence Against Women recently granted $1.2 million to the New York City Gay and Lesbian Anti-Violence Project, pulling from funding it received in 2018.

Among the more head-scratching increases, the director of the Office of Violence Against Woman gets an $80,000 raise, something that makes little sense in light of the rising rates of domestic violence during the pandemic. What justifies such a significant raise?

In addition, Section 206 of the bill creates a new grant program specifically for LGBT groups for a total of $40 million over five years. The preoccupation with cramming identity-driven protections into federal law does a disservice to the name “Violence Against Women Act.” Every resource and funded program available through the Violence Against Women Act should be available to women in the aggregate, regardless of their sexual orientation.

The Senate hasn’t justified carve-outs for “underserved populations,” and to include, for example, nonbinary individuals or homosexual men alongside women in the bill makes a mockery of hard-won efforts to achieve equality.

4. Constitutional Conundrum

Then, there is the not-insignificant matter of the act’s constitutionally prohibited expansion of tribal jurisdiction in violation of Articles II and III of the U.S. Constitution (with a cost of $155 million to accompany it).

By permitting the courts of Indian tribal nations—legally recognized as sovereign nations, not states—to exercise jurisdiction over non-Indians charged with certain criminal offenses on tribal lands, the Violence Against Women Act gives those tribal courts jurisdiction that they simply do not have.

Two realities make this provision a problem: First, Article II of the Constitution makes clear that only duly appointed officers of the United States have the power to criminally convict and imprison American citizens as an exercise of the government’s power. Because tribal judges as citizens of sovereign nations cannot ever be appointed, they lack the authority to criminally convict non-Indians—no matter what the Senate bill says.

Second, Article III of the Constitution also clarifies the conditions under which Congress appoints federal judges, including life tenure during good behavior and salary protection. Here’s the problem: Congress has not and cannot give tribal court judges life tenure, nor has it protected their salaries from being decreased.

As a strict constitutional matter, the “special tribal jurisdiction” that the Violence Against Women Act tries to establish would—if challenged in court—most likely fail on its face.

5. Abortion Protection

By way of an impressive sleight of hand, the latest version of the bill seeks to establish a prevention and education program related to domestic violence, dating violence, sexual assault, and stalking. The bill also addresses “technological abuse and reproductive and sexual coercion, that is age-appropriate, culturally relevant, ongoing, delivered in multiple venues on campus, accessible, promotes respectful nonviolent behavior as a social norm, and engages men and boys.”

Did you catch that?

“Reproductive coercion” is a back door approach to making sure that young men who impregnant their girlfriends, or even young married men who impregnant their wives, have essentially relinquished their say in whether the woman should have an abortion. To refuse to terminate the life of the unborn child amounts to “reproductive coercion” and, for purposes of the Violence Against Women Act, domestic violence. In the Senate’s mind, to prevent an abortion is violence, but to have an abortion is tranquility.

Same Story, Different Day

In short, the 2022 Violence Against Women Act reauthorization is same story, different day. And it does nothing to protect the interests of biological women, equality, the unborn, or the rule of law.

It does, however, play politics with the lives of women who need it most.

This piece originally appeared in The Daily Signal