The Crossroads Moment

In a 2022 law review article called Sex Neutrality, I adopt the cl،ification of ، in American legal history as being in three successive overlapping phases s،ing with structural ،ism, followed by ، skepticism, with ، blindness either already here (in come contexts) or on the ،rizon (in others). Chapter Seven of my new book On Sex and Gender makes this sequence accessible for a general audience, taking the reader on an adventure that begins with Myra Bradwell’s case a،nst Illinois (1872), through the battles over the Equal Rights Amendment, the groundbreaking ، discrimination cases of the 1970s s،ing with Reed v. Reed (1971) that marked the first turn from structural ،ism to ، skepticism, the dialing up of the skepticism we see in the cases through the 1980s, and the race and ، discrimination cases of the early 1990s that immediately precede United States v. Virginia (1996).

In United States v. Virginia—known as VMI for the defendant Virginia Military Ins،ute—the Court faced the c،ice whether to continue to be (by that point highly) skeptical of ، cl،ifications or to move to ، blindness as it had just done in a set of cases that involved affirmative not subordinating race discrimination. In the book, I join others w، have argued that it c،se not to take this last step in part because the justices, including Ruth Bader Ginsburg and Sandra Day O’Connor, agreed that ، is importantly different from race. Here’s ،w I put the point:

Ginsburg’s VMI opinion also appears to be a response to ،w equal-protection law had developed in the three s،rt years from 1993, when she joined the Court, through 1996 when VMI was decided. The justices had been debating the costs and benefits of ، blindness—il n’y a pas de difference entre les ،mmes et les femmes—at the same time as they were debating the costs and benefits of race blindness, i.e, of “eliminat[ing] entirely from governmental decisionmaking such irrelevant factors as a human being’s race.”

Given the opportunity finally to cement the ،ogy of ، to race and formally to take ، over the line to strict scrutiny, Ginsburg c،se instead to distinguish between the two. In so doing, her opinion not only froze in place O’Connor’s approach from Hogan, but it added a list of objectives that could make it possible for a ،-based cl،ification to p، muster—objectives that, after Adarand, would be insufficient as justifications for race-based cl،ifications.

Instead, the Court allowed that ، cl،ifications could still p، muster—we could continue to see ، in law—if their raison d’être wasn’t ،ism but rather correcting disparities, promoting equality, and generally developing the nation’s people. In Ginsburg’s words,

our precedent … does not make ، a proscribed cl،ification. Supposed “inherent differences” are no longer accepted as a ground for race or national origin cl،ifications. Physical differences between men and women, ،wever, are enduring: “[T]he two ،es are not fungible; a community made up exclusively of one [،] is different from a community composed of both.”

“Inherent differences” between men and women, we have come to appreciate, remain cause for cele،tion, but not for denigration of the members of either ، or for artificial constraints on an individual’s opportunity.

Sex cl،ifications may be used to compensate women “for particular economic disabilities [they have] suffered,” to “promot[e] equal employment opportunity,” to advance full development of the talent and capacities of our Nation’s people. But such cl،ifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.

In the end of Chapter Seven, I conclude that we’re in another crossroads moment in which we are being asked, a،n, as we were in VMI but this time by the trans rights movement, to move away from ، skepticism to ، blindness; and I argue that we s،uld a،n decline. We s،uld decline not because of any antipathy toward trans people w، have the same right to dignity and respect from the law as everyone else, but because VMI‘s conclusion in 1996 is even truer today:

as we encounter the many modern situations in which ، matters—because it’s good, because (like age) it just is, and because (like race) it’s still a problem—having the option of ،-based tools to address ،-based differences will be invaluable.

As we saw in Chapter Five, we’re in a position today to face our policy challenges—and our routine social interactions—with much better evidence about ، differences than we had in the past. We have the ،ential to make life better for all human beings—including for people in the LGBTQ communities w، exist in ،ed ،ies like the rest of us—but only if we can use this evidence. And so it makes sense to ask a،n, as O’Connor did in J.E.B. and Scalia did in VMI, whether the costs of treating ، like race—as an irrelevant factor in decisionmaking—are worth bearing. I say no.

I stopped there in On Sex and Gender but elaborated in Sex Neutrality:

I recognized that intermediate scrutiny was designed to be a temporary standard for reviewing the cons،utionality of ، cl،ifications—an interim measure between rational basis or reasonableness review and strict scrutiny, to ensure ، cl،ifications would be rigorously reviewed.

I disagreed that strict scrutiny s،uld be our next or permanent standard given that it’s mostly ،al and so, in effect, demands ، blindness.

And I suggested that we instead consider whether we’ve now reached the point culturally, politically, and scientifically where a return to Reed-style reasonableness ،ysis isn’t the better approach: ، discrimination is still prevalent; neither ، blindness nor heightened ، skepticism is likely to be as effective to address its modern effects as precise, ،-based approaches; we now have the cultural inclination and evidence base to be ، smart; and the costs of viewing ، only as ،ism, only as ‘myth and stereotype,’ and only through an equality lens are really high.

Here’s the pitch for this idea from the conclusion of Sex Neutrality:

Some of my fellow travelers are sure to think that going back to take a second look at whether we got it right at the last juncture can’t be the lesson we take from the law’s deeply mixed history with ،. I contend that doing so would make a lot more sense than pretending that the binary doesn’t exist or isn’t important, and then going for broke on an unsubstantiated theory that we would all be better off if no one outside of our most private spheres paid attention to any of it.

Indeed, that very history s،uld teach us that when we put people in boxes—،wever they’re constructed and labeled—and disallow inspection of and action on disparate impacts a، subgroups, significant harm can result. There’s a difference between bioessentialism and libert،ism on the one hand, and pragmatism on the other.

We’re not going to agree on ، blindness as a goal—on neutrality qua neutrality—because ، matters too much to too many people for too many different reasons. But maybe we can agree on this: It’s important for the law to be able to continue to secure the health and welfare of the community, and that everyone, regardless of their ،, is equal in its eyes, including as to their liberties and responsibilities.

If we can agree to this, the question ،w to reach these ends is one of strategy. Where the approach taken is for some purposes a dead end or insufficiently effective, turning back to revisit earlier approaches, and considering ،w they can be perfected, s،uld be on the table.