For any effective policymaking, there needs to be a clear goal—a North star—towards which all efforts are pointed. Then, the policymaking process can seek to affect that outcome using various routes and pathways. As the process continues and laws and policies are assessed, those that go astray can be adjusted or discarded and those that advance the goal be continued and amplified. But the focus remains the ultimate goal initially identified.
For many years, with respect to racial justice, the goal was to achieve colorblindness through law and in society. But for gender, “gender-blindness” has never been seriously considered, instead accepting a separate-but-equal model, where gender difference is accepted in general but rejected as the basis for differential treatment in many circumstances. In this post, the U.S. experience with race will be analogized to consider whether gender- blindness or gender neutrality should be considered as a laudable policy goal.
Since the 1950s, the mainstream civil rights movement in the U.S. sought to establish a regime of law and society wherein the ultimate goal was colorblindness: the color of one’s skin becomes irrelevant to the way a person is treated by the law and others in society. Brown v. Board of Education outlawed discrimination on the basis of race, overturning decades of color-conscious separate-but-equal policymaking legitimated by Plessy v. Ferguson. Many Supreme Court decisions have cited to and echoed Chief Justice Burger’s opinion in Palmore v. Sidoti when he wrote: “Classifying persons according to their race is more likely to reflect racial prejudice than legitimate public concerns.” Martin Luther King Jr.’s famous I Have A Dream Speech envisioned a time when people would be judged not “by the color of their skin but by the content of their character.” While today Dr. King’s speech is often misappropriated by opponents of policies seeking to remedy race discrimination and also by some who object to teaching about slavery and race in schools, it stands as an expression of the North star, where race-based categories will be ultimately dismantled in law and irrelevant to the treatment of individuals by others in society.
Because of the prevalence and persistence of racism, policies that seek to achieve colorblindness as a goal must be color-conscious until that goal is achieved. It would be impossible to remedy race discrimination in employment, for example, without laws that recognize race in order to prohibit race discrimination, provide for affirmative action to remedy past and current racist policies, and gather data about race to determine policies’ effectiveness. But, race-conscious policies do not contradict or undermine an ultimate goal of race neutrality or colorblindness. They are necessary to achieve that goal. As Sandra Day O’Connor wrote upholding the University of Michigan Law School’s affirmative action program in Grutter v. Bollinger: “The requirement that all race-conscious admissions programs have a termination point ‘assure[s] all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself.’” [1]
Thinking about colorblindness as a racial justice goal has been changing. Granted, the thinking has never been monolithic, but in recent years, concerns about how colorblindness downplays racial bias and silently maintains discrimination are gaining currency. These thinkers argue that the mechanisms that facilitate racial inequality have become more ambiguous and insidious than they were in the past, when explicit race bias was the norm, and the language of explicit racism has given way to a discourse of colorblindness. Opponents of colorblindness contend that the refusal to take public note of race actually allows people to ignore manifestations of persistent discrimination.(See e.g. Wingfield, 2015; Bouie and Hughes, 2023; and Fitchburg St.U., 2023) It is worth noting, however, that while these theories and arguments oppose color-blindness as a method to achieve racial justice, they often don’t question its value as an ultimate goal, like the one imagined by MLK.
With this in mind, we turn to gender. Race and gender have much in common in that they are both social constructs that were, at one time, seen as biological realities. For race, there were speciesist theories and others, which scientists sought to substantiate and which were used by policymakers to justify slavery and mistreatment. (Andreasen, 2000) For gender, there has been centuries of science and policy that tied all sorts of social, psychological and emotional baggage to sex differences. They prevented women from holding office, serving on juries, owning property as married women, being legal guardians of their children and more. ( See also, Muller v. Oregon, (1908) (upholding law limiting women's work-day to ten hours); Radice v. New York, 264 U.S. 292 (1923) (upholding law prohibiting women from working certain jobs between 10 PM and 6 AM); Goesaert v. Cleary, 335 U.S. 464 (1948) (upholding law prohibiting women from working as bartenders); Hoyt v. Florida, 368 U.S. 57 (1961) (upholding systematic exclusion of women from state juries). Many restrictions on women in the workplace were upheld as reasonably based upon women’s innate limitations and unalterable social roles.
While many of these policies have been overturned, the social constructs remain and courts and policymakers—and society at large-- have maintained a separate conception of men and women without much examination or concern. Gonads and genital organs have been accepted as evidence of all sorts of gender differences. Of course gender-neutrality would not eliminate actual sexual differences (just like colorblindness won’t change skin pigmentation) but would hold that the law and ultimately society not attribute more to those difference than patently exist, i.e. reproductive function.
To date, the goal of policymaking in the gender justice arena has been to treat women as a separate category equal to men when similarly situated. (For more on this, see Sex and Gender as a Category in Law, Part II in this Substack) Stemming from so-called “equal treatment feminist theory,” this pervasive concept of gender justice contrasts with those of “cultural feminists” who assert that the goal should be to emphasize and celebrate the differences between men and women and reject male norms. (Levit and Verchick, 2006) Neither of these nor other mainstream theories and the policy goals they engender sincerely seek to eliminate legal gender completely. And, the question for us here is, should they? Is it something worth pursuing?
Similar to the experience with racial justice policymaking whose end goal has largely been colorblindness, efforts towards pursuing de-legitimation of gender would complicate efforts to address continuing inequality and discrimination. (See the Future of Legal Gender post in this Substack for more on this.) As with race, the means to the end goal of an ungendered polity would have to be gender-conscious. There are also similar concerns about color- and gender -blindness resulting in the loss of identity, culture and connection that enrich people’s lives and experiences. However, it is important to remember that color- or gender blindness as a goal involves eliminating color- and gender- consciousness from external sources in law and society. It leaves identity, culture and connection to the individual.
Let’s look at the ultimate goal, if successful. In other words, putting aside the “how to get there” question, what would the US – indeed the world-- be like if we were color and gender-blind? If skin color were as inconsequential as eye color? Is that a future you would like to see? What about if the nature of one’s reproductive organs and secondary sex characteristics were as irrelevant as one’s blood type? A system where one’s female or male sex characteristics do not socially or legally categorize or connote one’s attributes, status and power. Both males and females would be free from the assigned roles, status, norms, and stereotypes that affect so many aspects of our lives. Our perception of ourselves and others would not be unnecessarily constrained by external and internalized expectations, which limit our range and freedom and those of our children. Is that a future you would like to see? Let me know by submitting a comment.
[1] It should be noted here that Grutter was implicitly overturned in 2023 in Students for Fair Admission Inc v. President and Fellows of Harvard College, in part because the admissions programs at Harvard (and UNC) did not seem to have a termination point. But, the majority opinion, concurrences and dissents all affirmed color-blindness as an historical and current goal of the 14th Amendment as well as early and current civil rights laws.
References
Andreasen, Robin O. “Race: Biological Reality or Social Construct?” Philosophy of Science 67 (2000): S653–66.
Bouie, Jamelle and Coleman Hughes, Does Colorblindness Perpetuate Racism? Open to Debate Podcast, Aug. 11, 2023.
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
Fitchburg State University, Amelia V. Gallucci-Cirio Library Guide, Anti-racism Resources, last updated Mar. 15, 2023.
Goesaert v. Cleary, 335 U.S. 464 (1948).
Grutter v. Bollinger, 539 U.S. 306 (2003).
Hoyt v. Florida, 368 U.S. 57 (1961).
King, Martin Luther, Jr. I Have a Dream Speech, August 28, 1963. National Archives and Records Administration, Video Transcript for Archival Research Catalog (ARC) Identifier 2602934.
Levit, Nancy and Robert Verchick. A Primer: Feminist Legal Theory, New York University Press, 2006.
Muller v. Oregon, 208 U.S. 412 (1908).
Palmore v. Sidoti, 466 U.S. 429 (1984).
Radice v. New York, 264 U.S. 292 (1923).
Students for Fair Admission Inc v. Pres. and Fellows of Harvard College, 600 U.S. 181 (2023).
Wingfield, Ada H. Color Blindness is Counterproductive, The Atlantic, Sept. 13, 2015.
Wright, J. Skelly. Color-Blind Theories and Color-Conscious Remedies, 47 U.Chi. L.R. 213 (1980).