“Just the act of putting something into words can give you the impression that everything is under control.”[1]
Categorizing people is thought by many to be part of human nature and is essential to the way we understand the world. At the personal level, they can create a feeling of community and of understanding where you fit in. Recognizing that “I am part of this group” can alleviate feelings that one is alone and isolated in their difference.[2] Classifying and generalizing about others help us grasp the complex world around us, creating a shorthand for understanding. In the policy realm, categories can help to clarify public problems and societal goals. In the context of distributive justice, categories are often used to allocate benefits and burdens. U.S. anti-discrimination law seeks to advance the goal of eliminating the harms to specific categories of people in employment, housing, education and more. However, problems can arise when categories become institutionalized – by law or by societal norms -- and take on a life of their own, distorting and/or limiting understanding of ourselves and others. In this article, I will discuss how categories are used or prohibited in law to distribute rights, benefits and burdens.
CATEGORIES FOR DISTRIBUTIVE JUSTICE
Federal, state and local laws often create classifications of people in order to advance policy objectives, distributing benefits or burdens accordingly. When there is a public problem that clearly impacts or is created by a certain group of people, policy solutions that so-classify beneficiaries and obligees are clear and natural. For example, the problem of homelessness may be addressed with housing subsidies for the group of people labeled as “homeless.” The problem of income inequality may identify “the wealthy” and burden that group with a higher percentage income tax while imposing no tax at all on those who fit within the category of “the poor.”
While these categories may be clear, they are also unstable, an undesirable quality for policy. As the law is implemented, a dialectic occurs in which people seek to be included or excluded from its reach.[3] For example, the progressive income tax classifications incentivize people to do what is necessary—hide income, take advantage of tax loopholes – to get out of “the wealthy” category or into “the poor” category and a lower tax bracket. The law has to continually adjust the labels so that they better fit the subjects it wishes to cover.[4]
Oftentimes, classifications in law and policy are used as imperfect but more easily administered proxies for other things. For example, age classifications: senior citizen benefits are part of a social welfare safety net intended to help people with non-wage, fixed incomes and greater health care needs. The law uses age as a proxy for need even though there are many seniors who still work and/or have savings and passive income outside of their retirement plans, some of which are quite generous. These seniors don’t need discounts and subsidies and by providing them, the social safety net for those with more need is diminished. But, since most older adults need these benefits, using age as a proxy makes sense and is easier to administer. People know when to sign up and the government has simple criteria (age) on whom to accept.
Sex and gender categories are often used as proxies in law to distribute benefits and burdens in an effort to advance public goals. For example, in the 1960’s, the federal government established a scheme of fringe benefits for dependents of members of the uniformed services in order to boost enlistment. These benefits automatically included female dependents of male service people, but if a female serviceperson sought benefits for her husband, the law required a showing of male dependency.[5] In this case, the sex category was proxy for need: it was more likely in those days that the wife of a serviceman, rather than the husband of a servicewoman, did not work outside of the home. So female dependency and male independency, which were typically true, were assumed by the law, even though the assumption was incorrect for thousands of female and male spouses. Like age classifications above, administratively, it is easier to use sex as a proxy for need, rather than have individual determinations be made for each applicant. Individual determinations require due process, which means hearings and evidence– both time-consuming and expensive. [6]
Imperfect categories can be under-inclusive—miss some people who should incur the benefit or burden—or over-inclusive—include some who should not incur the benefit or burden. But legal labels and classifications that place people into boxes have additional repercussions. Categories tend to depersonalize people, defining them by one or two (out of many) of their characteristics (for example, “disabled people”, “homeless people”). This can limit one’s range of options by creating frames —self- and societally-imposed—defining and sometimes narrowing the possibilities of self-definition or opportunities in the world (e.g., when disabled people are treated as children). Morevoer, categories may become self-fulfilling in that once they exist, they tend to create boxes into which people want to or are forced to fit. Once in the law, they become institutionalized categories from which other legal and social assumptions and consequences flow, providing the basis for and legitimizing differential treatment of members of different groups.
Sometimes instead of simplifying and clarifying, the labels distort issues and their distinctiveness in disadvantageous ways. For example, the LGBTQIA+ category has grown from one denoting sexual orientation (LGB) to one covering many gender/sex/ual minorities.[7] No doubt, there is much that is shared among this grouping in terms of societal acceptance (or lack thereof), victimization, harassment, non-recognition and discrimination. However, there are also distinctions among the categories grouped under this term, which are poorly understood by the public and policymakers, and may be relevant for specific purposes of distributive justice. For example, some of the health needs of the different groups which are combined by policymakers differ.[8] Labels create imperfect groupings that can stifle individuality and hinder societal goals.
CATEGORIES IN RIGHTS AND EQUALITY JURISPRUDENCE
Categories are also used in law to determine whether and what kind of protection one gets from discrimination. Statutory protections prohibit discrimination in various walks of life—e.g. in employment, education, housing, public accommodation--for people on the basis of their race, ethnicity, national origin, religion, sex, age, and health status, among other things.[9] Legislatures and administrative agencies, in a political process, determine which categories of people have equality rights and where. Through law, these bodies determine in what situations (e.g. work, school, housing), which categorical distinctions (e.g. race, sex, age), made by whom ( e.g. hiring managers, admissions officers, landlords) should or should not be allowed. [10] So, for example, federal antidiscrimination law would bar an employer from refusing to hire someone because of their race.[11] But, in most states in the U.S., an employer who refuses to hire someone because of their eye color would not be punished because it is not explicitly forbidden.
Categories in the rights and equality context can be fluid and adaptive, like in the distributive justice context explored earlier. A good example of this are the categories covered by laws prohibiting sex discrimination in employment. When passed, Title VII of The Civil Rights Act of 1964 was intended to address the problem of employment discrimination against women (among other categories).[12] Over time, it has been interpreted to also include discrimination against men, although it is still unclear as to whether and how it covers discrimination against people who identify as non-binary. The statute has been interpreted to prohibit discrimination based on sexual stereotypes.[13] Sex as a category of discrimination has also been expanded to include sexual harassment, even when there is no tangible employment action by the employer, so-called hostile work environment sexual harassment.[14] It was not until recently that discrimination in employment on the basis of sexual orientation and gender identity were included by interpretation: Even though the U.S. Congress did not agree to include LGBTQI+ people as protected from discrimination in employment under federal law, the Supreme Court interpreted the statute to include them under the umbrella of sex and gender-based discrimination.[15]
In addition to statutory protections against discrimination in the private sector (e.g. private employment) discussed above, the U.S. Constitution protects against discrimination in the public sector, in that it circumscribes the ability of the government and the law to make certain distinctions among people. The Equal Protection Clause of the Fourteenth Amendment holds that “No State shall …deny to any person within its jurisdiction equal protection of the laws.”[16] Through these words, the Constitution prohibits all unreasonable discrimination by the government. So, when a law classifies people and makes distinctions among them, its constitutionality can be challenged and the courts, in exercising judicial review, will determine whether the law can stand.
But all challenged legal classifications are not treated equally. Through interpretation, a tiered standard of review has emerged so that the constitutionality of a particular law will depend upon the identity category of the alleged victim and the basis for discrimination. If the law is categorizing people on the basis of race or ethnic origin, when challenged it will get “strict scrutiny.” If it categorizes on the basis of sex or gender, the law will be reviewed by the courts using “heightened” or “intermediate level scrutiny.” And, if a law categorizes and treats people differently for any other reason, it will get “rational basis scrutiny.” As each is explained below, you will see that this court-created classification system of review has tangible impacts on the constitutionality of discriminatory laws.
As discussed earlier, the progressive federal income tax structure in the U.S. treats people with high income different from those with low income. The laws that do this are constitutional: it is o.k. under the Due Process and Equal Protection clauses to discriminate on the basis of income when setting up the income tax structure. That is because the U.S. Constitution prohibits law that unreasonably discriminates, which, in most cases means that it is fine to classify and discriminate if the classification has a rational relationship to a legitimate governmental purpose.[17] The legitimate purpose of the income tax system is to raise money for public works and, to a certain extent, redistribute income. It is rational to do this with a progressive income tax that discriminates against high income people by taking a higher percentage of their income than from people with low incomes.
Similarly, the government may discriminate on the basis of citizenship status by denying the category of people who are legal, but not permanent residents or citizens of the U.S., access to certain health care subsidies. According to the Supreme Court, “it is unquestionably reasonable for Congress to make an alien’s eligibility dependent on both the character and the duration of his residence.”[18] Likewise, a form of age discrimination--mandatory retirement age for Foreign Service officers——is constitutional “because Congress desired to maintain the competence of the Foreign Service, the mandatory retirement age of 60 rationally furthers its legitimate objective….”[19]
This low standard of “reasonableness” is intended to limit the power of the judiciary to strike down acts of the legislative and administrative, a.k.a. political branches. Article III of the U.S. Constitution establishes the judicial branch of the federal government as one of limited authority, since its members are unelected and therefore are not accountable to the people. So, when elected officials pass a law, its legitimacy is presumed and judges will be barred from replacing their policy preferences for those of the people represented by the legislature, unless it is unreasonable or otherwise violates constitutional imperatives, as is the case with “suspect classifications.”
In some cases, a classification is “so seldom relevant to the achievement of any legitimate state interest”[20] that a law that makes such categorical distinctions will have to pass a more difficult test than the “rational basis” test explained above. “Suspect classifications”-- those based on race or national origin-- get elevated “strict scrutiny” in large part because these classification had been unjustly used in the past. When courts consider the constitutionality of government acts using strict scrutiny, they will only uphold the law if it is narrowly tailored to meet a compelling government interest. [21] Strict scrutiny requires that race only be used as a category if that is essentially the only way to address a very, very important government goal. This means that any law or government action that takes race as a category and treats people differently on this basis will very likely be struck down by the courts as unconstitutional discrimination.
In the 1950s and 60s, when the strict scrutiny standard was initially developed, it was used to strike down as unconstitutional laws that were seen as engaging in invidious discrimination, based on racial stereotypes and/or burdening racial minorities, like school segregation or miscegenation laws. [22] More recently, laws that entail benign or so-called beneficial race distinctions have undergone strict scrutiny. In a 2007 case, the Supreme Court used strict scrutiny to invalidate a plan to racially integrate schools that had become segregated due to housing patterns. The public school districts involved pursued the goal of diversity by classifying students by race and ethnicity and partially relying on that classification in making school assignments. The Court found this to be unconstitutional under Equal Protection clause because the goal of “race balancing” is not compelling and, even if there can be a compelling interest in racially diverse schools, there are race-neutral alternatives available to achieve the goal, i.e. the policy was not narrowly tailored.[23]
Some affirmative action programs that consider a candidate’s race as a factor for jobs or university admissions have been upheld under strict scrutiny in the past.[24] But the Court has started to apply strict scrutiny more robustly, requiring universities and workplaces to find other ways to diversify.[25] The idea that “to stop discrimination we must stop discriminating” has gained traction in certain legal and policy circles, influencing a movement towards abolishing race as a category, even for policies that seek to diversify and remedy societal race discrimination.
Sex and gender classifications in law are arguably “suspect” in that in the vast majority of contexts, sex characteristics are irrelevant to the government’s policy goals or one’s ability to perform or contribute to society. But the Courts have refused to afford strict scrutiny when sex and gender based classifications are challenged under Equal Protection. Instead, a third, intermediate level standard of review has emerged, sometimes called “heightened” scrutiny, which requires a substantial relationship – looser than narrowly tailored—between the classification and an important – rather than compelling—governmental interest.[26] Why the difference? To date, sex and gender have been seen by the courts as more than just a social construct worthy of being ignored and eventually eliminated (see Part II: Sex and Gender as a Category in Law, for more). We at a WWG would like that to change.
[1] John Koenig. The Dictionary of Obscure Sorrows. New York: Simon & Schuster, 2021 at 257.
[2] See Geertje Mak, “The Sex of the Self and Its Ambiguities, 1899–1964,” in The Palgrave Handbook of the History of Human Sciences, ed. McCallum, D. (Singapore: Palgrave Macmillan, 2022) at 8, discussing Magnus Hirschfeld’s sexological categories.
[3] Ian Hacking, “Making Up People,” London Review of Books 28 no 16 (2006): 23-26 called this a “looping effect.”
[4] Identity categories entail a “process in which subjects mold themselves according to labels, and labels are adjusted to get subjects to fit better.” Mak at 5. Friedrech Nietzsche wrote: “it is enough to create new names and estimations and probabilities in order to create in the long run new ‘things.’” The Gay Science, trans. by Walter Kaufmann. New York: Vintage Books, 1974 at 122.
[5] Note that the gendered terminology made sense at the time, when same sex marriage was not legally recognized in all fifty states.
[6] Frontiero v. Richardson, 411 U.S. 677 (1973) rejecting the constitutionality of using administrative convenience as a reason for using sex as a proxy for determining spousal dependency. See this post’s Part II: Sex and Gender as a Category in the Law for an explanation of the decision.
[7] See Sari van Anders, “Gender/sex/ual diversity and biobehavioral research,” Psychology of Sexual Orientation and Gender Diversity (2022). See also “LGBTQIA Resource Center Glossary,” UC Davis.
[8] Institute of Medicine (US) Committee on Lesbian, Gay, Bisexual, and Transgender Health Issues and Research Gaps and Opportunities, The Health of Lesbian, Gay, Bisexual, and Transgender People: Building a Foundation for Better Understanding (2011).
[9] For example, 20 U. S. C. §1681 (popularly known as Title IX) prohibits sex discrimination in education; 29 U.S.C. §621 et seq prohibits age discrimination in employment; 42 U. S. C. §2000e et seq (popularly known as Title VII) prohibits discrimination based on race, color, religion, sex, or national origin in employment; 42 U. S. C. §3601 et seq prohibits discrimination based on race, color, religion, sex, familial status, or national origin in housing; and 42 U.S.C. §12101 et seq (prohibits disability discrimination in employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services. There are many more federal laws and numerous state and local laws addressing equal justice goals.
[10] To observers of the American political system and the role of money in politics, it is telling that economically disadvantaged people as a category lack statutory and constitutional equality protections.
[11] 42 U. S. C. §2000e et seq.
[12] The Equal Rights Amendment to the US Constitution, which would have prohibited employment discrimination against women, was being debated at the time. Although there is evidence that when Senator Howard Smith added an amendment to the Civil Rights Act of 1964 to add sex to the four original categories – race, religion, color and national origin—his intent was to kill the entire measure: a poison pill, which failed. Women’s Rights and the Civil Rights Act of 1964, National Archives.
[13] Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), superseded by statute on other grounds, Comcast Corporation v. Nat'l Ass'n of African American-Owned Media, 589 U.S. __, 140 S. Ct. 1009, 1017 (2020). In Price Waterhouse, Ann Hopkins was denied a promotion because she was seen by some as behaving like a man. One member of the Policy Board making the decision advised her that in order to improve her chances next time she should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." 490 U.S. at 235. The Court found that, a person's nonconformity to social or other expectations of that person's gender (sex stereotyping) constitutes impermissible sex discrimination under Title VII.
[14] Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
[15] Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020). See Pamela S. Katz, Now Something for the Glass Half Empty Crowd: Bostock v. Clayton County, Georgia Explained, 30 Tul. J.L. & Sexuality 53 (2021).
[16] U.S. Const. XIV §2. That same admonition applies to all levels of government via the Due Process clause of the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497 (1954)
[17] See e.g. San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973)(using rational basis scrutiny to uphold a state formula for distribution of education funds that resulted in low levels of financial support for poor students).
[18] Mathews v. Diaz, 426 U.S. 67, 83 (1976).
[19] Vance v. Bradley, 440 U.S. 93, 109 (1979).
[20] Clerburne v. Clerburne Living Center, 473 U.S. 432, 440(1985)
[21] See e.g. Loving v. Virginia, 388 U.S.1 (1967) striking down Virginia’s anti-miscegenation law.
[22] Brown v. Board of Education, 347 U.S. 483 (1954). Loving at 11: “There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.”
[23] Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education, 551 U.S. 701 (2007)(“Before Brown [v. Board of Education] schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons.” at 747.)
[24] See e.g. Grutter v. Bollinger, 539 U.S. 306 (2003) upholding law school affirmative action program. Cf. City of Richmond v. Croson, 488 U.. 469 (1989)(striking down set asides to minority-owned businesses for construction projects).
[25] On June 29, 2023, the US Supreme Court decided SFFA v. UNC and SFFA v. Harvard and invalidating race-conscious admissions programs at UNC and Harvard. .
[26] Reed v. Reed, 404 U.S. 71 (1971).