“[T]he sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members...”[1]
Sex and gender classifications[2] have been used in law to allocate social welfare and other benefits and burdens and to provide for single-sex spaces and targeted services, including health and reproductive care. All too often, the distinctions being made are based on stereotypes of sex-based societal or familial roles and false “natural” differences, which serve to disadvantage women economically, narrow the opportunities of both women and men, and more generally, maintain a sex-based, binary social order. While in recent history enlightened policy has refused to endorse some of the more harmful misconceptions, the biological fact of different reproductive systems between men and women continues to perpetuate an overly expansive notion of gender difference in law, even in policies that aim to address inequality and discrimination in employment, education, leadership roles and elsewhere.
Below I will talk first about how the U.S. Constitution’s Due Process and Equal Protection requirements have been applied when laws that make distinctions among people on the basis of sex are challenged in court as unconstitutional. Then, I will consider laws directed towards deterring and punishing sex discrimination.
Due Process and Equal Protection Under the Constitution
When considering the constitutionality of laws and government actions that use sex as a category for the distribution of benefits or burdens, the Equal Protection and Due Process clauses of the U.S. Constitution prohibit governmental discrimination on the basis of sex, but only if men and women are similarly situated with respect to the matter at hand. For example, the Supreme Court upheld a California statutory rape law that made men alone criminally liable for having sex with a female under the age of 18. It found that “young men and young women are not similarly situated with respect to the problems and risks of sexual intercourse.”[3] While the state had expressed a moral element to this claim, the Court’s decision found that “the risk of pregnancy itself constitutes a substantial deterrence to young females. No similar natural sanctions deter males.” [4]
When else do the genitals and reproductive systems of different humans make them dissimilar with respect to the law at hand?[5] In other words, when is using a sex category constitutional? In the past, the use of sex categories in U.S. law took account of what was thought to be basic and widespread differences between males and females. They prevented women from holding office, serving on juries, owning property as married women, being legal guardians of their children and more. [6] Many restrictions on women in the workplace were upheld as reasonable based upon women’s innate limitations and unalterable social roles. As Supreme Court Justice Bradley wrote: “The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, ... indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood ... The paramount destiny and mission of woman (sic) are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.”[7]
When these sex-based policies were challenged as violating the U.S. Constitution’s command that all be given “equal protection of the laws,” the courts were asked to determine whether the policies can stand or if the government—the legislature, administrative agency or implementing authority—must find another way to accomplish its legitimate goals. This so-called “rational basis scrutiny”—a legal standard that requires that a law be rationally related to a legitimate governmental objective-- largely resulted in essentially rubber-stamping sex-based policies for most of U.S. history.[8] Deference to the political branches required that courts not substitute their policy judgments for those of the representative bodies, like the legislature and executive, unless those judgments were clearly irrational or illegitimate.
Over time and especially during the women’s rights revolution in the 1960s and 70s, the Supreme Court looked more closely at gender distinctions made by the law. It came to understand that men and women are largely similarly situated when it comes to economic and social goods and the unequal treatment of women through history is built on the social constructs and stereotypes derived from them. As a result, the courts were asked by advocates to make sex a “suspect classification” and apply “strict scrutiny” to sex-based classifications in law, such as that which is applied to race-based classifications.[9] They contended that, similar to laws that make racial classifications, “statutes distributing benefits and burdens between the sexes in different ways very likely reflect outmoded notions of the relative capabilities of men and women [rather than meaningful considerations].”[10] And, because of a history of prejudice and the imbalance of representation in government, groups disadvantaged by sex classifications, namely women, were politically powerless to generate change through normal democratic processes. These obstacles required courts and the constitution to step in more assertively.[11] U.S. Supreme Court Justice Ruth Bader Ginsburg, then an advocate for the American Civil Liberties Union, expressed the idea clearly:
“Like other groups that have been assisted toward full equality before the law via the ‘suspect classification’ doctrine, women are sparsely represented in legislative and policy-making chambers and lack political power to remedy the discriminatory treatment they are accorded in the law and society generally. Absent firm constitutional foundation for equal treatment of men and women by law, women seeking to be judged on their individual merits will continue to encounter law-sanctioned obstacles.” [12]
Ultimately, the Supreme Court refused to extend strict scrutiny to sex-based classifications. Unlike race, it reasoned, sex is a system wherein men and women have actual, biological differences, which sometimes need to be recognized by law.[13]
At the same time, it was recognized that the law needed to be corrected when it reflected, perpetuated and advanced false notions of men and women’s variable capabilities, natures and rigid social and familial roles. To resolve this, the Court found sex and gender to be a “quasi-suspect” classification and developed a third level of scrutiny called “intermediate level” or “heightened” scrutiny, which falls somewhere in between rational basis and strict scrutiny. This meant that when the law makes distinctions based upon sex or gender, it will be upheld only if it “closely” (not just “rationally”) serves an “important” (rather than merely “legitimate” under rational basis scrutiny) governmental interest.
An example: In Frontiero v. Richardson, the Court considered a challenge to a government policy that provided housing and medical allowances automatically to the spouse of male members of the uniformed services, whether or not the wife was in fact dependent on the member for support. [14] But, the same allowances for the spouse of female members required them to show that the husband was dependent on the member for more than one-half of his support. In its decision, the Court held that while there was an important government interest in attracting and retaining career personnel into the uniform services, the differential treatment did not closely serve this purpose. It was true that more wives were dependent on their husbands at that time. So the policy applied this assumption to all, thereby avoiding dependency determinations for wives in order to save time and money. However, the Court found that the discrimination between men and women in order to achieve administrative efficiency did not serve the important purpose-- building the workforce through provision of fringe benefits --closely enough to pass muster under heightened scrutiny and so the policy was invalidated.[15]
Deterring and Punishing Sex Discrimination
Sex classifications are also used in anti-discrimination and affirmative action law, which seeks to foster sex and gender equality and to erase the legacy of sex-based discrimination against women. For example, many countries have either legislated candidate quotas or reserved seats for women in their national legislatures.[16] In the U.S., anti-discrimination law exists on the federal, state and local levels, protecting people from sex discrimination in employment, education, housing, public accommodations and more.
Many of these policies have exceptions when men and women have characteristics that ostensibly distinguish them and which can make a difference to the law. Take Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of sex unless being a particular sex, i.e. male or female, is a bona fide occupational qualification (BFOQ).[17] This means that the law allows for an employer to discriminate against employees and potential employees on the basis sex if one’s sex is “a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." [18]
For example, a regulation prohibiting women from working as corrections officers in contact positions in male prisons was upheld as a BFOQ in Dothard v. Rawlinson.[19] The Court had a lot of explaining to do when they found that females could be eliminated from contention for positions as security guards for their own safety, even though, as a result, female corrections officers were able to compete with men for only 25% of the corrections positions available in the state. The Court recognized that Title VII is intended to permit women to make their own choices about the risks of employment, rather than have a paternalistic state decide what is safe for them. However, Justice Stewart wrote, there is more at stake in this case than the risk to the individual female who chooses to take it: a female guard in these conditions would “pose a substantial security problem” to the facility because she would provoke sexual assaults, among other things.[20] Justice Marshall, dissenting in part, refused to accept the explanation for a BFOQ in this case, asserting that the reason for the “security problem” identified by the majority “perpetuates one of the most insidious of the old myths about women that women, wittingly or not, are seductive sexual objects.” [21] As this case demonstrates, application of anti-discrimination law and BFOQ is complex and fraught with the prospect of law maintaining —and perhaps extending— overly expansive notions of gender difference.
In modern times, both constitutional and statutory law seem to agree that discrimination grounded on sex for purposes unrelated to any biological difference between the sexes must be prohibited. The sharp point of the question was and continues to be: what biological differences between males and females actually make a difference in the way people are/should be situated with respect to the law?
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[1] Frontiero v. Richardson, 411 U.S. 677, 686 (1973).
[2] Sex and gender are used interchangeably in most U.S. law. See Bostock v. Clayton County, 590 U.S. ___, 140, S.Ct. 1731, 1784-1791 (2020) (J.Alito, dissenting, Appdx).
[3] Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 471 (1981).
[4] Ibid. at 473.
[5] As opposed to when these differences are used as a proxy for other variables that are relevant to legitimate policy goals. See Categories in Law –Part I for a discussion about proxies in law.
[6] See e.g., Muller v. Oregon, 208 U.S. 412 (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 bartender in most situations); Hoyt v. Florida, 368 U.S. 57 (1961) (upholding systematic exclusion of women from state juries).
[7] Bradwell v. Illinois, 83 U.S. 130,141 (1873)(Bradley, J., concurring) upholding the state of Illinois exclusion of women from the practice of law.
[8] See f.n. 6, above for examples and Categories in Law, Part I for a more robust explanation of “rational basis scrutiny.”
[9] Strict scrutiny requires a very high burden to uphold a law, meaning that most statutes that get strict scrutiny are struck down by the courts as unconstitutional under the 5th or 14th Amendments. See Categories in Law, Part I for more about “strict scrutiny.”
[10] City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985).
[11] The idea of varied levels of Equal Protection scrutiny were initially expressed in United States v. Carolene Products Co. , 304 U.S. 134, 152, fn.4 (1938).
[12] Brief for American Civil Liberties Union, Amicus Curiae at 6, Frontiero v. Richardson, 411 U.S. 677 (1973).
[13] See Michael M. referenced above re: statutory rape.
[14] Frontiero, 411 U.S. 677 (1973). Note that this case from the 1970s when no state permitted same sex marriage and there was no constitutional right therefor.
[15] Ibid. See also Craig v. Boren, 429 U.S. 190 (1976)(invalidating a law setting the legal age for buying beer at 18 for females and 21 for males) and United States v. Virginia, 518 U.S. 515 (1976)(invalidating the ban of women from Virginia Military Institute). Examples where legal classifications based on sex were upheld include Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981)(upholding statutory rape law that makes males alone criminally liable recognizing that men and women are not similarly situated when it comes to pregnancy and so can be treated differently) and Rostker v. Goldberg, 453 U.S. 57 (1981) revisited in National Coalition for Men v. Selective Service System, 969 F.3d 546 (5th cir. 2020) (upholding a law that required men but not women to register for the selective service).
[16] For more detail, see UN Women Facts and figures: Women’s leadership in political participation.
[17] 42 U.S. Code § 2000e-2. BFOQ is an affirmative defense for employers to use when accused of sex discrimination, since it provides an exception to the prohibition. Note that the binary sex and gender classification is implied in the law, an example of anti-discrimination law perpetuating a discriminatory binary system. See future posts on this Substack for more on this topic.
[18] Ibid.
[19] 433 U.S. 321 (1977). In contrast, there was no BFOQ available to enforce a workplace policy that barred females from areas of its plant where high lead exposures could harm a fetus if carried by a pregnant woman. The Court found that the BFOQ exception only permits employers to discriminate on the basis of sex based on qualities that will have an impact on an employee’s job performance, rather than to protect fetal health. UAW v. Johnson Controls, 499 U.S. 187 (1991)
[20] Dothard at 335-36.
[21] Ibid. at 345