Gender Discrimination

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Gender Discrimination
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Historical Context

• Biology Matters!
• Natural Law
• Coverture

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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.

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Womens Rights Movement
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Seneca Falls Convention (1848)
Lucretia Mott
Elizabeth Cady Stanton
Frederick Douglass
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Milestones in the Womens Rights Movement

• World War I
• Nineteenth Amendment ratified (1920)
• World War II

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(No Transcript)
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1960s

• Presidents 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

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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

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Employment Discrimination

• Discrimination
• Harassment
• Quid pro quo
• Hostile work environment

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1970s

• Title IX of the Federal Education Act of 1972
• Pregnancy Discrimination Act of 1978

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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.

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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 Brennans
  Frontiero decision

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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 . . . .
• What 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.

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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

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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
• Rehnquists dissent this is too mushy!!

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Heightened Scrutiny v. Strict Scrutiny

• Important Government Interest
• Means substantially related to ends

• Compelling Government Interest
• Means necessary to achieve ends

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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

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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)

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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