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  Compelling Government

Interest Interest

 Means substantially  Means necessary to

related to ends 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