Gender Discrimination

Historical Context

Biology Matters! Natural Law Coverture

Hoyt v. Florida “Despite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men, woman is still regarded as the center of home and family life. We cannot say that it is constitutionally impermissible for a State, acting in pursuit of the general welfare, to conclude that a woman should be relieved from the civic duty of jury service unless she herself determines that such service is consistent with her own special responsibilities.”

Women’s Rights Movement

Seneca Falls Convention (1848)

Elizabeth Cady Stanton

Lucretia Mott Frederick Douglass

Milestones in the Women’s Rights Movement

World War I

Nineteenth Amendment ratified (1920)

World War II

1960s

President’s Commission on the Status of Women (1961)– “to see that the doors are really open for training, selection, advancement and equal pay”

Equal Pay Act (1963) – Prohibited discrimination in compensation on the basis of gender

1960s

Title VII of Civil Rights Act of 1964– Prohibited discrimination on the basis of sex re: “compensation, terms, conditions, or privileges of employment”

– Created the EEOC

Employment Discrimination

Discrimination Harassment

– Quid pro quo – Hostile work environment

1970s

Title IX of the Federal Education Act of 1972

Pregnancy Discrimination Act of 1978

Equal Rights Amendment First introduced in Congress in 1923 Opposition from liberal, pro-women groups

Finally approved by House and Senate and sent to the States in 1972:– Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

Equal Rights Amendment

Never ratified – only earned approval from 35 of necessary 38 State legislatures

Still historically important!!– Seemed to prompt the Supreme Court to act

– Passage by Congress actually noted in Brennan’s Frontiero decision

What About the 14th Amendment?

Rep. Martha Griffiths (D-Mich)– “No woman seeking the protection of the 14th Amendment has ever won a case before the Supreme Court . . . .”

– “[W]hat the equal rights amendment seeks to do, and all it seeks to do, is to say to the Supreme Court of the United States, “Wake up! This is the 20th century. Before it is over, judge women as individual human beings.””

Equal Protection Clause of 14th Amendment Frontiero v. Richardson (1973) Plurality (4 Justices) used strict scrutiny– Long history of gender discrimination– Closely parallels race discrimination– Gender is immutable characteristic– Gender generally bears no relationship to actual ability

Concurring Justices used rational basis

Equal Protection Clause of 14th Amendment Craig v. Boren (1976) Articulated “heightened” or “intermediate” scrutiny test– Important government interest– Means substantially related to achieving those objectives

Rehnquist’s dissent: this is too mushy!!

Heightened Scrutiny v. Strict Scrutiny

Important Government Interest

Means substantially related to ends

Compelling Government Interest

Means necessary to achieve ends

Heightened Scrutiny Since Craig v. Boren – Legislation Voided

SS provision requiring widowers demonstrate financial dependency for survivor benefits

Alabama law requiring men pay alimony but not women

Mississippi University for Women policy of excluding men

Using peremptory strikes to eliminate women from jury

VMI policy of excluding women

Heightened Scrutiny Since Craig v. Boren – Legislation Upheld

Gender differences re: statutory rape Gender difference in registering for selective service

Citizenship of children born outside U.S. to one citizen and one non-citizen (if mom is the citizen,citizenship is automatic . . . Not if dad is the citizen)

Where does this leave us?

Constitutional protection unreliable

Most protection of gender equality is statutory

Most protection of gender equality has to do with economic opportunities