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The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law | The Legal Workshop

The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law

Cary Franklin - Yale Law School

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In 1970, Ruth Bader Ginsburg, soon-to-be head of the ACLU’s Women’s Rights Project (WRP), had a novel idea: She decided to challenge the constitutionality of sex-based state action by bringing cases featuring male plaintiffs. Up to that point, only women had brought sex discrimination claims under the Fourteenth Amendment. By the time Ginsburg’s decade-long litigation campaign ended, men far outnumbered women among the ranks of constitutional sex discrimination plaintiffs to appear before the Supreme Court—a ratio that holds true to this day.

Conventional wisdom dictates that Ginsburg’s decision to represent male sex discrimination plaintiffs was “a strategic choice.”1 Her aim was to rid the law of formal sex classifications, and for this purpose, plaintiffs of either sex would do. Male plaintiffs were “a useful tool”2that enabled the WRP to address “what was primarily a women’s issue”3 by focusing on small but concrete harms to men. Legal scholars have commonly recognized that “Ginsburg was especially eager to argue cases brought by men [because] she thought judges might look more favorably on claims made by people of their own gender.”4

Despite the historic success of Ginsburg’s efforts to win heightened scrutiny for sex-based state action, many legal feminists have judged her use of male plaintiffs harshly. They have argued that the conception of equality animating her litigation campaign was formalistic and “empty at [its] core,”5 and that ridding the law of overt sex classifications has done little to rectify women’s secondary status in the American legal system. If the WRP had targeted substantive inequalities between the sexes, critics have charged, its campaign might have yielded a sex-based equal protection doctrine more attentive to women’s subordination. These critics have argued that Ginsburg’s decision to press the claims of men foreclosed any possibility that the Court would adopt such an approach: Such claims obscured “women’s experience of second-class citizenship”6 and were aimed only at vindicating the narrow principle that the government may not classify on the basis of sex.

This Article takes a fresh look at the foundational sex-based equal protection cases of the 1970s and the theory of equal protection that motivated Ginsburg to bring cases on behalf of male plaintiffs. It argues that the dominant historical narrative, which identifies anti-classification as the philosophical principle at the core of the WRP’s campaign, overlooks a richer theory regarding constitutional limits on the state’s power to enforce sex-role stereotypes. This theory helped to shape the Court’s sex-based equal protection jurisprudence in ways that have powerful implications for current controversies involving the rights of women and sexual minorities, including the exclusion of women from combat and the draft, the regulation of pregnant women and mothers, the rights of transgender individuals, and the ability of same-sex couples to marry. But the richness of these claims has largely been obscured in canonical accounts of the history of constitutional sex discrimination law.

I first began to suspect that the canonical accounts of the foundational sex discrimination cases might be lacking when I discovered a note Ginsburg attached to the first brief she wrote, in 1970, explaining that she had gotten the idea to bring sex discrimination claims on behalf of male plaintiffs from “Mill and the Swedes.”7  

There was a great resurgence of interest in John Stuart Mill’s writing among feminist philosophers, political theorists, and activists in the late 1960s. Mill argued in 1869, in The Subjection of Women, that we do not know what men or women are truly like because they have for so long been compelled to conform to sex stereotypes. He memorably compared women’s character to that of a tree, half of which was nurtured in a hothouse and sprouted luxuriantly, and the other half of which was left in the snow, where it withered and died. Mill argued that it would be a fallacy to view this tree as a creation of nature; people, likewise, grow in the ways we shape them. Importantly, Mill applied this concept to both sexes.  He argued that men and women are both constrained by sex-role stereotyping, and that sex equality requires alleviating the pressures on everyone to behave in accordance with such stereotypes.     

This way of thinking about sex equality appealed to Ginsburg in part because she had seen it in practice. She spent the 1960s studying and writing about Swedish law and regularly visiting Sweden, which was, at this time, undergoing a revolution in its thinking about sex equality.  Many Swedish writers and policymakers began to argue in the early 1960s that sex discrimination was not simply a women’s issue. They argued that both sexes were forced to conform to traditional sex roles and that as long as men were discouraged from taking on women’s roles, women would never be equal. In 1969, combating sex-role enforcement became a central policy aim of the Swedish government. Sweden instituted affirmative action programs for both sexes, became the first country in the world to make parental leave available to men, and even began to examine the ways in which infrastructure and transportation networks pressed men and women to conform to a male-breadwinner, female-caregiver model. 

Social movements in the United States also began to frame sex equality in anti-stereotyping terms in the late 1960s. The women’s movement framed the issues of reproductive rights and childcare in these terms; they argued that the absence of these goods effectively compelled women to adopt traditional caregiving roles. Like the Swedes, the movement frequently argued that liberating men from sex stereotypes was essential to the project of liberating women. Similarly, the gay and lesbian liberation movement that emerged in the wake of the Stonewall riots framed its arguments in anti-stereotyping terms. It argued that the enforcement of sex roles was at the root of discrimination against sexual minorities, who were punished because they failed to fit the traditional male-breadwinner, female-caregiver mold. Movement leaders argued that combating sex-role stereotyping was just as important for the liberation of sexual minorities as it was for the liberation of women.    

This Article shows how Ginsburg translated the claims of these social movements into constitutional arguments. She argued in a series of briefs that sex-based state action violates the Fourteenth Amendment when it steers men and women into separate spheres and presses them to conform to traditional roles. Drawing on the claims of the women’s movement, Ginsburg argued that sex-role stereotyping was the mechanism by which sex inequality was perpetuated, and that this is what the Court should protect against in sex-based equal protection cases. Contrary to the conventional wisdom, this new anti-stereotyping theory was not simply anti-classificationist: It permitted—indeed, encouraged—the state to classify on the basis of sex when doing so served to dissipate sex-role stereotypes. Nor was it simply anti-subordinationist: Because discrimination against women had traditionally been viewed as a benefit to them, Ginsburg was concerned that an anti-subordination principle would provide courts with too little guidance about which forms of regulation violate the Equal Protection Clause. In taking an anti-stereotyping approach, her aim was to provide the Court with a mediating principle that would enable it to determine when sex-based state action warrants constitutional concern.

In 1975, her efforts bore fruit. The Court itself began to reason about sex discrimination in anti-stereotyping terms in the groundbreaking case of Weinberger v. Wiesenfeld. The plaintiff in Wiesenfeld was a father who applied for “mother’s benefits” to enable him to stay home with his infant son after his wife—the family’s primary earner—died in childbirth. The government denied his application on the basis of sex: Fathers were, by definition, ineligible for mother’s benefits. The Court, however, held this rule unconstitutional on anti-stereotyping grounds. It found that the statute pushed women out of the workforce by making their work and Social Security contributions less valuable than those of their male coworkers—and that it pushed men out of caregiving roles by depriving them of the benefits that would have enabled them to stay home if they were women. In fact, the Court observed that if the state stopped enforcing the male-breadwinner, female-caregiver model, even men in more typical families might sometimes choose to stay home with their children. 

In the years after Wiesenfeld, the Court repeatedly invalidated laws on anti-stereotyping grounds. It struck down a law that required parents to support boys longer than girls, a law providing that only men could be forced to pay alimony, and a law that denied men admission to a state nursing school on the ground that these laws fostered “the role-typing society has long imposed.”8 The Court did not, however, apply the anti-stereotyping principle broadly. Most notably, it did not apply the principle in cases involving so-called “real” differences. When the state cited a “real” difference between men and women as a justification for a sex-based law, the Court generally accepted this justification and did not ask whether the law might nonetheless reinforce stereotypes in constitutionally problematic ways. Thus, when Ginsburg’s campaign ended in the early 1980s, equal protection law still largely failed to reach issues such as pregnancy, rape, abortion, and sexuality, which were understood to implicate “real” differences. This caused scholars to criticize both Ginsburg and the Court for relying on a narrow, anti-classificationist conception of equality. I argue, however, that her campaign and the cases it yielded reflected a more robust conception of equality. The problem was less with the principle than with the limitations the Court imposed on it.

The source of this problem has become more apparent over time as the Court has started to dismantle some of these limitations. For instance, the Court now takes a different view of “real” differences than it did thirty years ago. This shift was apparent in the 1996 case of United States v. Virginia, which held that the Virginia Military Institute’s (VMI) all-male admissions policy violated equal protection. A great deal of argument in this case focused on which differences between men and women are real; VMI defended its exclusionary admissions policy in part by arguing that women were simply too different from men to succeed at the institution. 

The Court responded to this argument by recognizing that “[p]hysical differences between men and women . . . are enduring.”9 What has changed is the constitutional landscape in which the state regulates those differences. In the past, the Equal Protection Clause was interpreted to give the state wide latitude to regulate whenever “real” differences were involved. But the Court in Virginia rejected this interpretation. It held that the state may classify on the basis of sex if doing so serves to dissipate sex-role stereotypes, but not if it perpetuates them. In so doing, the Court suggested that equal protection law is now less concerned with the question of which differences between men and women are “real” and more concerned with what the state chooses to do with those differences.

More recently, the Court dramatically underscored this point in Nevada Department of Human Resources v. Hibbs, which upheld Congress’s power to enact the Family and Medical Leave Act. The Court in Hibbs treated discrimination against “mothers and mothers-to-be”10 as the core of sex discrimination, despite the fact that pregnancy is the quintessential “real” difference. The Court wrote extensively about the ways in which women are steered out of the workplace when they become pregnant and how this discrimination cements the stereotype that women are “mothers first, and workers second” 11represents a profound departure from old ways of reasoning about “real” differences: It was the first time the Court recognized that discrimination against pregnant women can foster “the role-typing society has long imposed” in ways that raise equal protection concerns.

This doctrinal shift has significant implications for a number of questions that have not traditionally been understood to implicate the Equal Protection Clause. For instance, the Court has long adjudicated reproductive rights claims under the rubric of due process, rather than equal protection. The sequestering of reproductive rights questions made some sense in a constitutional regime in which pregnancy—a “real” difference—lay beyond the reach of equal protection law. Now, however, the Court has recognized that the regulation of pregnant women and mothers can raise equal protection concerns when it reflects or reinforces expectations associated with the separate spheres tradition.

This raises questions about the Court’s holding three years ago in Gonzales v. Carhart. The Court in Carhart upheld the Partial Birth Abortion Ban Act in part because it found that restricting a woman’s right to abortion fosters “the bond of love the mother has for her child” and protects women from the depression, grief, and “loss of esteem” that may afflict those who opt—against their very nature—to terminate their pregnancies.12 Over the past ten years, this “woman-protective” argument has become an increasingly prevalent means of justifying restrictions on the right to abortion. But the extension of anti-stereotyping doctrine into the domain of pregnancy means that concerns about sex equality are now part of the doctrinal landscape in which cases involving abortion are decided. Thus, when the Court confronts an abortion restriction predicated on the desire to foster women’s natural role as mothers, it now needs to ask—as it did not in Carhart—whether this perpetuates traditional conceptions of sex and family roles.

Questions about sex stereotyping also arise in the context of same-sex marriage. In recent years, opponents of same-sex marriage have defended sex classification in marriage on the grounds that it reflects and reinforces traditional understandings of the institution. These advocates argue that men and women play opposite and complementary roles in marriage and make different, gender-linked contributions to children’s development. This argument has become a key rationale for denying gays and lesbians the right to marry. Numerous courts have endorsed the gender-based argument, and it has played a central role in recent controversies over the constitutionality of Proposition 8. Yet this rationale rests on the very stereotypes about sex and family roles that the Court has deemed unconstitutional as a ground for sex-based state action since the 1970s.

Thus far, the sex-stereotype tension in same-sex marriage cases has been largely invisible to courts—a phenomenon that stems at least in part from an impoverished understanding of the history of sex-based equal protection law. The California Supreme Court, for instance, recently rejected the idea of applying constitutional sex discrimination law to the question of same-sex marriage. The Court explained that the foundational sex discrimination cases were simply about improving women’s access to jobs, education, and other public goods, and that they had nothing to do with the rights of gays and lesbians. 

Those foundational cases were indeed about women’s rights. But they sought to secure those rights by promoting an equality principle that would protect everyone from sex-role enforcement by the state. And this, I argue, is the legacy of the male-plaintiff cases—a constitutional commitment to combatting sex-role stereotyping that remains deeply relevant in equal protection law today.

Acknowledgments:

Copyright © 2010 New York University Law Review.

Cary Franklin is a Postdoctoral Associate in Law and Irving S. Ribicoff Fellow in Law at Yale University

  1. David Cole, Strategies of Difference: Litigating for Women’s Rights in a Man’s World, 2 LAW & INEQ. 33, 56 (1984).
  2. Id. at 39.
  3. Id. at 55.
  4. Judith Baer, Advocate on the Court: Ruth Bader Ginsburg and the Limits of Formal Equality, in REHNQUIST JUSTICE: UNDERSTANDING THE COURT DYNAMIC 216, 219 (Earl M. Maltz ed., 2003).
  5. Mary Becker, Patriarchy and Inequality: Towards a Substantive Feminism, 1999 U CHI. LEGAL F. 21, 22.
  6. A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE LAW 4 (1987).
  7. Letter from Ruth Bader Ginsburg to Jamison Doig, Professor Emeritus of Politics and Int’l Affairs, Princeton Univ. (Apr. 6, 1971) (on file with the Library of Congress, Manuscript Division, Ruth Bader Ginsburg Papers, Container 5, Folder: Moritz v. Comm’r May 1971).
  8. Stanton v. Stanton, 421 U.S. 7, 15 (1975).
  9. United States v. Virginia, 518 U.S. 515, 533 (1996).
  10. Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 736 (2003).
  11. Id.
  12. Gonzales v. Carhart, 550 U.S. 124, 159 (2007).

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