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Gender issues

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Description: Social questions involving and legal distinctions based on a person's sex.


Significance: Supreme Court decisions on a wide range of cases involving gender issues significantly influenced many aspects of daily life. The Court's decisions provide both pragmatic and symbolic guidance on increasingly complex legal and social issues relating to gender.


In the latter half of the twentieth century, major societal changes took place in the United States. All these changes, particularly increased recognition of individual rights, the mass entry of women into the workplace, and technological advances, raised new legal issues involving gender. The Supreme Court began handling cases involving claims of differential treatment based on sex. Cases alleging de jure gender discrimination have largely, but not entirely, been supplanted by those claiming de facto discrimination. Many of the Court's most influential decisions on gender issues occurred in cases alleging violation of the equal protection clause of the Fourteenth Amendment. History shows that this amendment was intended to remedy racial discrimination, and controversy exists as to the applicability of this clause in contexts such as sex discrimination. The disagreement centers on the extent of the Court's authority to broaden the scope of equal protection; essentially, this is part of the wider controversy over the power of judicial review. Until 1971 the Court applied a minimal level of review to all cases challenging classifications by sex as a violation of the equal protection clause. This meant that the Court focused on whether the gender distinction in the statute was rationally related to a legitimate government purpose, as embodied in the statute. Under this minimal standard, the Court did not require close congruence between government goals and statutory means, and every statutory distinction by gender that was challenged under the equal protection clause was upheld by the Court. Reed v. Reed (1971) marked the first time the Court struck down a gender-specific statute as a violation of the equal protection clause. Although the justices purported to use the traditional minimal “rationality” standard of review, in retrospect, it was evident they had actually employed a “heightened” standard. However, this still fell far short of the strict scrutiny that plaintiff's attorney Ruth Bader Ginsburg (later justice Ginsburg) argued should be applied. The Court's shift toward closer scrutiny of gender issue cases and the divisions among justices on this issue became clear in Frontiero v. Richardson (1973). In striking down a government regulation requiring husbands, but not wives, of Air Force personnel to prove dependency in order to obtain spousal benefits, four justices argued that strict scrutiny should be applied to classifications based on sex, while four argued this was either unnecessary or unwise. The question of what standard of review the Court should apply in gender and equal protection cases was clarified in Craig v. Boren (1976), in which the Court struck down a sex-specific restriction on beer purchases. In Craig, the Court articulated an intermediate standard that examines whether a statutory gender distinction is “substantially related to important government objectives.” The Court's decision to apply this level of review to gender classifications, rather than the highest standard of strict scrutiny applied to racial classifications, marked a critical point in the legal history of gender issues cases. The Court in Craig reasoned that classifications by gender are not “inherently suspect” and thus do not require strict scrutiny, unlike classifications by race. The Court was strongly criticized for employing the less demanding standard of review for gender classifications, and the distinction also raises the question of what level of scrutiny would apply to claims of discriminatory classification on the basis of the combination of gender and race. The major theme of most Supreme Court cases involving gender issues is an allegation that men and women were treated differently and thus unequally. In these cases, the Court examines the claim of differential treatment and its potential legal justifications, which vary according to the legal context in which the case is raised.


Equal Protection Cases

The Court's analysis of cases presenting claims of gender discrimination in violation of the Fourteenth Amendment's equal protection clause focuses on whether women and men are “similarly situated” with respect to the legal issue in question. The Court's reasoning in such cases has been that differential treatment of men and women is not per se gender discrimination because equal protection requires only that persons who are “similarly situated” be treated alike. Therefore, if the Court finds that men and women are not similarly situated, then differential treatment may be constitutional. Rostker v. Goldberg (1981) raised an equal protection challenge to the Military Selective Service Act requiring men to register for the draft. The Court sustained the statute on grounds that because women were not subject to the draft, men and women were not similarly situated with respect to the issue of draft registration. Justice Thurgood Marshall's dissent argued that men and women were similarly situated with respect to their eligibility to serve in noncombat support positions and argued that the Court majority should have applied a different analysis. In Michael M. v. Superior Court of Sonoma County (1981), the Court upheld a statute specifying criminal penalties for men convicted in statutory rape cases. The challenge to the statute argued that the sex-specific provision penalizing only male participants in such encounters violated equal protection. In its decision, the Court noted that the legislative intent of the statute was deterrence of teenage pregnancies and recognized that women and men were not similarly situated with respect to the adverse consequences of such pregnancies. The divisions among the justices on the question of whether differential treatment by gender constitutes unequal treatment offensive to the equal protection clause was highlighted in Geduldig v. Aiello (1974), raising an equal protection challenge to a disability statute that failed to cover pregnancy and pregnancy-related disabilities. The Court upheld the statute, reasoning that differential treatment on the basis of pregnancy was not the same as differential treatment on the basis of gender. The Court noted that although only women become pregnant, nonpregnant women and men received the same benefits under the statute. In dissent, Justices William J. Brennan, Jr., William O. Douglas, and Thurgood Marshall noted that the statute did provide coverage for disabilities unique to men and asserted that differential treatment of pregnancy was essentially sex discrimination.


Title VII Cases

In cases arising in a statutory context, the Court examines the issues in terms of the requirements and limitations of the applicable statute. Title VII of the 1964 Civil Rights Act, which prohibits discrimination in the terms, conditions, and privileges of employment, has been a source of several significant Court cases. In California Federal Savings and Loan Association v. Guerra (1985), the Court examined whether Title VII's prohibitions on sex discrimination conflicted with a California provision requiring private employers to provide leave for childbirth. A receptionist seeking to enforce her right to maternity leave under the state statute was denied by her employer. The employer asserted that because the state statute provided a benefit for pregnant employees, it was inconsistent with, and thus preempted by, the federal provisions of Title VII prohibiting discrimination on the basis of sex distinctions (including pregnancy and childbirth). The Court rejected this theory and supported the state provision, finding that the legislative intent of Title VII was to prevent discrimination against pregnant employees, not place limits on preferential treatment for them. The Court noted that the state statute supported equal employment opportunities and therefore was consistent with the purposes of Title VII. Title VII was interpreted by the Court as prohibiting both disparate treatment and disparate impact types of discrimination. A plaintiff alleging that an employer's policies illustrate disparate treatment must prove that the employer had discriminatory intent. If proven, the employer may justify the gender classification as a bona fide occupational classification. For example, in Dothard v. Rawlinson (1977), the Court upheld state prison regulations requiring male guards in some sections of men's prisons. In claims of disparate impact, the employer's intent is not relevant to the issue of whether the employer's policy has a disproportionately adverse impact.


Gender Differences

The Court's decisions in cases involving claims that differential treatment by gender is required or justified by differences between women and men illustrate the justices’ attempts to distinguish between claims based on gender stereotypes and those based on actual gender differences, whether biological, economic, or sociocultural. In Craig v. Boren (1976), Justice William J. Brennan, Jr., wrote: “It was necessary that the legislatures choose either to realign their substantive laws in a gender neutral fashion, or to adopt procedures for identifying those instances where the sex centered generalization actually comported to fact.” In Mississippi University for Women v. Hogan (1982), the Court rejected the university's claim that its single-sex admissions policy was intended to offer women a choice of a female-only educational environment. The majority opinion by Justice Sandra Day O’Connor reasoned that barring male applicants to the university's nursing education program would not only restrict men's educational choices but could perpetuate stereotypes about nursing as a strictly female occupation. The reaction of the Court to purported gender differences has varied greatly depending on the case and the legal philosophy of individual justices. The Court's opinions reveal disagreement between justices on the issue of whether ostensible gender differences are based on gender stereotypes or reflect biological or social facts and also on the issue of whether a particular gender difference is a legally supportable rationale for differential treatment. The variation in the justices’ perspectives on gender issues is exemplified by their opinions in cases employing protectionistic rationales for differential treatment by gender. Paternalism has been employed as part of the rationale for allowing differential treatment that clearly harmed women's interests by denying them equal opportunities or legal status, such as denial of the right to practice law (Bradwell v. Illinois, 1873). Another example is Automobile Workers v. Johnson Controls (1991), which challenged a workplace policy that prohibited female employees capable of childbearing from occupying positions involving exposure to lead as a violation of Title VII. The employer asserted that its concern was prevention of reproductive problems, but plaintiffs argued that this protectionistic policy deprived women of the right to make their own choices, and the Court agreed. However, paternalistic reasons also were often used as rationales for differential treatment by gender that ostensibly (although often not actually) benefitted women. In Muller v. Oregon (1908), the Court supported legislation authorizing shorter workhours for women than men, accepting the argument that women's physical constitution and reproductive role required reduced hours. As the following cases illustrate, the Court has often reviewed claims that differential treatment benefits women.


Benign Sex Classifications

The Court labels gender distinctions that actually or ostensibly favor women relative to men as “benign” sex classifications. A major question the Court has grappled with is whether benign gender distinctions are in fact harmless or whether they have potentially adverse consequences or ramifications for men, women, or both. In Kahn v. Shevin (1974), a widower challenged a state statute allowing only widows a property tax exemption as a violation of equal protection. The Court upheld the statute, noting that economic differences between women and men made it reasonable to support a policy distinction between widows and widowers. In dissent, Justices William J. Brennan, Jr., and Thurgood Marshall asserted that the statute was both overinclusive in its application to all widows regardless of financial status and underinclusive in its disregard for widowers in need. Brennan and Marshall reasoned that the statute should target surviving spouses who demonstrated financial need, regardless of gender. In Schlesinger v. Ballard (1975), the Court upheld a U.S. Navy policy granting women a longer time period in which to obtain promotion or else face discharge. In its reasoning, the Court emphasized that women and men in the Navy were not similarly situated with respect to the opportunities available for service (and thus promotion). Similarly, the Court upheld Social Security provisions giving women an advantage in computing their base income (and thus their benefits) in Califano v. Webster (1977), citing Congress's intent to compensate women for historically unequal economic treatment. Some observers of the Court hailed these decisions as appropriate redress for economic gender inequalities, and others raised questions about the fairness of such policies and their potential to engender potential backlash or stereotyping of women. In contrast, three weeks before in Califano v. Goldfarb (1977), the Court struck Social Security provisions awarding widows automatics benefits based on their husbands’ earnings but awarding widowers benefits only after they showed that they had received at least half their support from their wives. Some justices found the provision violated equal protection by discriminating against widowers receiving fewer benefits; however, some justices also found discrimination against the deceased women wage earners.


Other Gender Issues

The workplace and gender cases considered by the Court have significantly influenced most aspects of private and public employment. A prominent example is Meritor Savings Bank v. Vinson (1986), in which the Court distinguished between the “voluntariness” and the “welcomeness” of conduct in recognizing the coercive power of fear of job loss in sexual harassment cases. This distinction has resonated throughout subsequent cases addressing sexual harassment claims in the workplace and educational arenas. The Court's decision in Roe v. Wade (1973), legalizing abortion subject to certain restrictions, remains the landmark case in the area of gender and reproductive rights. Roe is significant not only for its substantive decision but also for its role in the Court's reasoning on the right to privacy. As such, Roe has implications for many types of cases grounded at least partially in the right to privacy. The Court's decisions on gender and reproductive rights serve as the legal framework for legislation and lower court cases addressing specific aspects of such rights, such as restrictions on abortion and abortion funding, access to contraception, and sterilization. Legislation and cases in the area of family law (also known as domestic relations law) reflect both the influence of relevant Court decisions and the scope and rapidity of societal and technological changes in the late twentieth century. Gender issues are often raised in cases involving marriage, divorce, paternity, parental rights, custody, adoption, and related topics such as same-sex marriage, custody, and adoption. Changes in reproductive technology such as surrogate parenting, sex-selection techniques, and egg and sperm viability have raised a host of new legal questions. Some cases involve crimes or civil offenses that raise issues of differential treatment of one gender or that have differential implications for one gender. The Court's decisions on constitutional and statutory questions such as the scope of due process in a wide variety of cases (whether originally presenting a gender dimension or not) are applicable to many issues raised with respect to gender and criminal or civil offenses. One example is DeShaney v. Winnebago County Department of Social Services (1989), in which the Court affirmed that the due process clause represents a limitation on governmental power, rather than an affirmative guarantee of government protection of an individual's safety. This reasoning has been applied in subsequent cases establishing that police do not have a constitutional duty to protect victims of domestic violence. The question of whether differential treatment violates equal protection has been raised in cases comparing the treatment of male and female offenders and cases challenging gender-specific definitions of crimes such as rape. The Court's reasoning regarding fetuses and legal personhood in Roe v. Wade has been revisited in cases contesting the legality of prosecuting pregnant substance abusers for child endangerment or abuse. A major source of cases raising claims of differential impact by gender are cases concerning the definition, First Amendment status, and impact of pornography. Such cases raise broad gender issues for the Court because of allegations that some pornographic depictions of women may cause women psychological or physical harm. Gender and education issues involving Court decisions include the constitutionality of single-sex educational institutions, the comparability of men's and women's sports programs at coeducational schools, and policies and practices concerning sexual harassment in schools. In United States v. Virginia (1996), the Court rejected the Virginia Military Institute's (VMI) proposal to preserve its historic status as a men-only educational institution by creating a separate but “substantively comparable” institute for women. The majority opinion by Justice Ruth Bader Ginsburg found that VMI failed to demonstrate that maintaining its men-only admission policy would serve an important government purpose such as contributing to educational diversity and also determined that the proposed facility for female cadets could not offer resources comparable to those of VMI. The Court has addressed a wide range of cases alleging civil rights violations on the basis of gender. These include cases alleging discrimination against patrons in public accommodations, challenging the membership restrictions of private groups, and challenging the exclusion of women from participation in civic duties such as jury service. The Court's decisions in cases involving gender issues reflect a mixture of adherence to precedent together with awareness of changing societal values, with the ratio of these elements varying according to the historical context, the nature of the case, and the legal philosophy of individual justices. The substance of the Court's rulings and the opinions expressed by the justices in these cases both reflect and significantly shape gender relations.



Further Reading

  • An execellent starting point is Joanne Belknap's The Invisible Woman: Gender, Crime, and Justice (3d ed. Belmont, Calif.: Thomson/Wadsworth, 2006). Class, Race, Gender and Crime: Social Realities of Justice in America (Los Angeles: Roxbury, 2002) by Gregg Barak, Jeanne M. Flavin, and Paul S. Leighton provides broad overviews of gender and other justice issues. Mary Becker, Cynthia Grant Bowman, and Morrison Torrey's Taking Women Seriously: Cases and Materials (St. Paul, Minn.: West Publishing, 1994) is a collection of essays and excerpts from cases and articles on feminist perspectives on gender issues. Joan Hoff's Law Gender and Injustice: A Legal History of U.S. Women (New York: New York University Press, 1991) provides a detailed and comprehensive look at the incomplete legal rights afforded women by the Constitution. Hoff's discussion clearly illustrates the concept of equal protection as “an umbrella with holes.” Feminist Jurisprudence, edited by Patricia Smith (New York: Oxford University Press, 1993), is a rich anthology providing excellent analyses of gendered perspectives in legal reasoning, including some selections on how relationships between gender, ethnicity, and class influence legal action on gender issues. A thought-provoking look at how political and religious norms are interwoven with legal and social issues of gender, race, and sexual identity is provided in Law's Promise, Law's Expression: Visions of Power in the Politics of Race, Gender, and Religion by Kenneth Karst (New Haven, Conn.: Yale University Press, 1993). The Criminal Justice System and Women, edited by Barbara Price and Natalie Sokoloff (3d ed., New York: McGraw-Hill, 2004) includes theoretical and empirical articles on women offenders, victims, and employees of the legal system. Women, Law, and Social Control, edited by Alida V. Merlo and Joycelyn M. Pollock (Newton, Mass.: Allyn & Bacon, 1995) examines the experiences of women workers in the legal system, as well as women offenders and victims. The latter two selections include insightful discussions of women who are both victims and offenders. Anne M. Butler's Gendered Justice in the American West: Women Prisoners in Men's Penitentiaries (Chicago: University of Illinois Press, 2000) provides an interesting historical perspective by looking at the treatment of female prisoners in nineteenth century male-inmate dominated prisons.