1. Gender Discrimination

2. Historical Context
Biology Matters!
Natural Law
Coverture

3. 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.”
Upholding the law in Florida (and shared by at least 17 other states at the time) that gave women an automatic exemption from jury service. In Florida, women were not included in the jury pool unless they specifically asked to be included. (1961)

4. Women’s Rights Movement
The struggle for women’s rights is closely tied to the struggle for racial equality; many of the abolitionists who opposed slavery also believed strongly in women’s suffrage and equal rights.

5. Seneca Falls Convention (1848)
Elizabeth Cady Stanton and her husband Henry Brewster Stanton were both active abolitionists In 1840, they traveled to London to attend the World’s Anti-Slavery Convention but, as a woman, she was excluded from the convention. That’s where she met Lucretia Mott. Years later, in July of 1848, the two met up again while Mott was visiting her sister in New York, near where Stanton lived. They decided to call a convention to discuss the status of women. The meeting, to be held later that month, was expected to be small because farmers were busy. But over 300 people showed up, including 40 men. None of the women felt able to preside, so Mott’s husband did.
Stanton had drafted the resolutions. She insisted on including a provision calling for women to get the vote Mott was worried that they would look crazy for even asking. And at the convention, there was little support Most of the attendees were Quakers, and even Quaker men usually declined to vote. But Frederick Douglass, a former slave turned newspaper editor and outspoken abolitionist took the floor and argued on behalf of the provision, and even it passed!
Lucretia Mott
Elizabeth Cady Stanton
Frederick Douglass

6. Milestones in the Women’s Rights Movement
World War I
Nineteenth Amendment ratified (1920)
World War II
WWI – women played vital role in WWI war effort, not only picking up jobs at home but also contributing overseas – nursing, entertaining troops, working as reporters, etc.
Democratic President Woodrow Wilson was up for reelection in 1916; his opponent (Charles Evans Hughes) supported women’s suffrage and 1/6 of the electoral college votes belonged to states that allowed women to vote. So Wilson signalled his support for women’s suffrage and won the election. Other politicians jumped on the bandwagon, saw support of suffrage as politically advantageous.
WWII, women again held non-traditional jobs that challenged those stereotypes underlying the coverture theory.

8. 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
Despite the fact that women made advances during the early 1900s, the 1950s saw women return to more traditional stereotypes The men were home, the emergency was over, it was o.k. for women to be women again. But, of course, there were plenty of war widows left behind, and many women were not satisfied with handing back the independence and opportunity the wars had given them.

9. 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
There’s historical controversy over why “sex” was added to the Civil Rights Act of Added by Howard Smith, D-VA. Known for his opposition to Civil Rights. Some thought he added “sex” to the Amendment in the hopes of killing the bill altogether. But there’s evidence that he actually worked with the National Women’s Party to add the language The fear was that the bill would actually give black women an advantage over white women because it didn’t provide any protection for white, Christian, U.S.-born women. Whatever it’s origins, Title VII has certainly helped women.

10. Employment Discrimination
Harassment
Quid pro quo
Hostile work environment
Court has, over time, developed what types of behavior are prohibited by Title VII. Most obviously, discrimination – you cannot refuse to hire women, you cannot pay them less, etc. But later the Court expanded the scope of behavior prohibited by Title VII to include harassment (and two kinds of harassment at that). Why is this important? Because if you hire someone then make her life miserable, she doesn’t really have equal opportunity.

11. 1970s Title IX of the Federal Education Act of 1972
Pregnancy Discrimination Act of 1978
Title IX prohibits discrimination in education on the basis of gender – can be used as a basis for female students (elementary, secondary, and post-secondary) to sue for discrimination and sexual harassment, but the big effect has been in the area of athletics (high school and collegiate) Must provide women with equal opportunities to participate in sports. But not necessarily *with* the boys or even in the same sports – ice hockey / cheerleading
PDA – employers cannot discriminate against women because of their pregnancy status (are pregnant, could be pregnant, “child-bearing years” etc.). One big thing is that it requires employer provided health insurance covers pregnancy related expenses the same as other similar medical conditions.

12. 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.
Why do we need the ERA? Because the 14th Amendment – which guarantees all “persons” equal protection under the law, was generally not seen as protecting women relative to men Does that seem legit? How could the court interpret the 14th Amendment in any way *other* than to forbid gender discrimination Because women were did not have the right to vote at the time the 14th Amendment was ratified, and their very “personhood” was legally questionable (remember the implications of coverture). Indeed, women didn’t expect the 14th Amendment to be the end of their fight, the suffragists continued to plow ahead for the right to vote. So it was without question, really, that the 14th Amendment – passed w/out women voting and in the wake of a war fought over slavery – was viewed as creating parity among MEN, not women.
Much of the opposition to the ERA came from groups who were worried about women losing many of the benefits they enjoyed (like protective labor laws and protection from military service)

13. 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

14. 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.””
One of the strongest proponents of the ERA
Signed an amicus brief in the Reed v. Reed case, along with the NOW and the American Veterans’ Committee -- Martha Griffiths actually saw the ERA as a response to Supreme Court inaction The Court was intimately a part of this process, specifically because it had been so reluctant to extend the 14th Amendment to women.

15. 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
In Frontiero, Brennan accuses Burger of straying from the traditional rational basis test But says it’s a good thing
Facts: Sharron Frontiero was in the Air Force, her husband was a student She wanted to secure dependent benefits for him, but was required to show that he was “financially dependent” on her – she paid at least 50% of his expenses (which she didn’t). But MEN didn’t have to make the same showing to secure benefits for their WIVES.
Brennan notes that the Court is already inching away from rational basis in gender cases Urges a switch to strict scrutiny. Why? Long history of sex discrim that parallels race discrim; sex is an immutable characteristic; bears no relation to actual ability.
Brennan also notes growing Congressional support for women’s equality (specifically, Title VII, EPA, ERA)
Using strict scrutiny, Brennan concludes the regulations are unconstitutional.
BUT, Brennan’s opinion is only a plurality (w/ Marshall, White, and Douglas) Powell, Burger and Blackmun concur in the judgement but get there via rational basis test (and Rehnquist actually dissented). Interestingly, the Concurrence also points to the ERA, but notes that the Court shouldn’t jump the gun until the ERA is actually ratified.

16. 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!!
Facts – Oklahoma law set age of majority at 18 for both men and women (pre-1972, women were “adults” at 18, men at 21) BUT women could buy 3.2% beer at 18, men had to wait until 21.
From the state’s perspective, what’s the justification for the law Public health and safety; year old men are more apt to drink and drive, get drunk, and be killed in alcohol-related accidents. I.e., men can’t hold their liquor.
Note that Brennan insists he’s not creating this standard, that this standard derives from Justice Burger’s decision in Reed v. Reed. “Reed, we feel, is controlling”

17. Heightened Scrutiny v. Strict Scrutiny
Important Government Interest
Means substantially related to ends
Compelling Government Interest
Means necessary to achieve ends

18. 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
Califano – struck down social security provision that required widowers but not widows to show financial dependency on deceased spouse in order to obtain survivor benefits
Orr – Alabama law required men to pay alimony to ex-wives but not women to pay alimony to ex-husbands
MUW v. Hogan, MUW had to allow a man into its school of nursing
J.E.B. says that excluding jurors on the basis of gender (during peremptory strikes) is state action and discriminates against women
U.S. v. Virginia, VMI (a state operated military academy) must allow women to enroll

19. 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)
Michael M. :Upholding a California “statutory rape” law that defined “unlawful sexual intercourse as "an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years.” so only applied to male perps, female victims Reason given is that only girls can get pregnant, so they already have an incentive to avoid sex/pregnancy Forces boys to internalize the cost of their behavior.
Rostker - Upheld law that requires men to register for selective service, not women . . .men and women not similarly situated because women generally not eligible for combat (of course, begs the question of the constitutionality of keeping women out of combat)
Miller and Nguyn – challenge to a statute dealing with citizenship of children born outside the U.S. to unmarried parents, one a citizen the other not. If the mother is a citizen of the U.S. the child is, too. If the father is the U.S. citizen, the child’s citizenship is not automatic – rather, before the child turns 18, paternity must be established via a legal proceeding in the child’s domicile, the father has to sign an affidavit admitting paternity, or paternity must be established in court of competent jurisdiction.
What do we notice here Even now, biology and cultural norms are ruling the day.
In Nguyn, the child was born in VietNam to a Vietnamese mother and an American father. Came to U.S. at age of 6 and was raised by dad. After 18, committed a crime and was found to be deportable *not* a U.S. citizen. How does the Court justify the distinction?
a) the requirement was justified by important government interests in (i) insuring reliable proof that a person born out of wedlock who claims citizenship by birth actually shares a blood relationship with a United States citizen, (ii) encouraging the development of a healthy relationship between the citizen parent and the child while the child is a minor, and (iii) fostering ties between the child and the United States, (b) the particular means used in 1409(a)(4) were well tailored to serve those interests, and (c) 1409(a)(4) was not a stereotypical gender-based classification, for the biological differences between single men and single women provided a relevant basis for differing rules governing such persons' ability to confer citizenship on children born in foreign lands.

20. 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