The Volokh Conspiracy
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The Crossroads Moment
In a 2022 law review article called Sex Neutrality, I adopt the classification of sex in American legal history as being in three successive overlapping phases starting with structural sexism, followed by sex skepticism, with sex blindness either already here (in come contexts) or on the horizon (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 against Illinois (1872), through the battles over the Equal Rights Amendment, the groundbreaking sex discrimination cases of the 1970s starting with Reed v. Reed (1971) that marked the first turn from structural sexism to sex skepticism, the dialing up of the skepticism we see in the cases through the 1980s, and the race and sex 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 Institute—the Court faced the choice whether to continue to be (by that point highly) skeptical of sex classifications or to move to sex blindness as it had just done in a set of cases that involved affirmative not subordinating race discrimination. In the book, I join others who have argued that it chose not to take this last step in part because the justices, including Ruth Bader Ginsburg and Sandra Day O'Connor, agreed that sex is importantly different from race. Here's how I put the point:
Ginsburg's VMI opinion also appears to be a response to how equal-protection law had developed in the three short years from 1993, when she joined the Court, through 1996 when VMI was decided. The justices had been debating the costs and benefits of sex blindness—il n'y a pas de difference entre les hommes 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 analogy of sex to race and formally to take sex over the line to strict scrutiny, Ginsburg chose 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 sex-based classification to pass muster—objectives that, after Adarand, would be insufficient as justifications for race-based classifications.
Instead, the Court allowed that sex classifications could still pass muster—we could continue to see sex in law—if their raison d'être wasn't sexism but rather correcting disparities, promoting equality, and generally developing the nation's people. In Ginsburg's words,
our precedent … does not make sex a proscribed classification. Supposed "inherent differences" are no longer accepted as a ground for race or national origin classifications. Physical differences between men and women, however, are enduring: "[T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both."
"Inherent differences" between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity.
Sex classifications 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 classifications 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, again, as we were in VMI but this time by the trans rights movement, to move away from sex skepticism to sex blindness; and I argue that we should again decline. We should decline not because of any antipathy toward trans people who 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 sex matters—because it's good, because (like age) it just is, and because (like race) it's still a problem—having the option of sex-based tools to address sex-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 sex differences than we had in the past. We have the potential to make life better for all human beings—including for people in the LGBTQ communities who exist in sexed bodies like the rest of us—but only if we can use this evidence. And so it makes sense to ask again, as O'Connor did in J.E.B. and Scalia did in VMI, whether the costs of treating sex 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 constitutionality of sex classifications—an interim measure between rational basis or reasonableness review and strict scrutiny, to ensure sex classifications would be rigorously reviewed.
I disagreed that strict scrutiny should be our next or permanent standard given that it's mostly fatal and so, in effect, demands sex 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 analysis isn't the better approach: sex discrimination is still prevalent; neither sex blindness nor heightened sex skepticism is likely to be as effective to address its modern effects as precise, sex-based approaches; we now have the cultural inclination and evidence base to be sex smart; and the costs of viewing sex only as sexism, 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 sex. 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 should teach us that when we put people in boxes—however they're constructed and labeled—and disallow inspection of and action on disparate impacts among subgroups, significant harm can result. There's a difference between bioessentialism and libertarianism on the one hand, and pragmatism on the other.
We're not going to agree on sex blindness as a goal—on neutrality qua neutrality—because sex 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 sex, is equal in its eyes, including as to their liberties and responsibilities.
If we can agree to this, the question how 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 how they can be perfected, should be on the table.
