Social questions involving and legal distinctions based on a person’s sex.
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.
In 1875, the Supreme Court ruled that the Fourteenth Amendment did not extend the right to vote to women. After ratification of the Nineteenth Amendment in 1920 gave women the vote, the League of Women Voters was formed to help women make the most of their new power.
Many of the Court’s most influential decisions on gender issues occurred in cases alleging violation of the
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
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
The question of what standard of review the Court should apply in gender and equal protection cases was clarified in Craig v. Boren
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.
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
In Michael M. v. Superior Court of Sonoma County
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
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
In California Federal Savings and Loan Association v. Guerra
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
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
In Mississippi University for Women v. Hogan
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
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
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
In Schlesinger v. Ballard
In contrast, three weeks before in Califano v. Goldfarb
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
The Court’s decision in Roe v. Wade
Legislation and cases in the area of family
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
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
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.
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.
Birth control and contraception
Bradwell v. Illinois
Craig v. Boren
Equal protection clause
Frontiero v. Richardson
National Organization for Women (NOW)
Pregnancy, disability, and maternity leaves
Race and discrimination
Reed v. Reed
Roe v. Wade