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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