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Like Race, Like Gender?
By JEFFREY ROSEN
February 19, 1996
https://newrepublic.com/article/73905/race-gender
But does the Constitution permit judicial restraint? The Clinton administration has dramatically raised the stakes by insisting that gender discrimination is just as invidious as racial discrimination and that separate but equal single-sex schools are inherently unequal. Brandishing the equal treatment vision on which Ruth Bader Ginsburg staked her career as a litigator, the Justice Department is urging the Court to treat all sex-based classifications, like all race-based classifications, as presumptively unconstitutional.
Unlike Shannon Faulkner, therefore, the administration is using a first-wave legal theory to achieve a first-wave goal: opening all public institutions to women. But 1996 is not 1970; and it's startling to realize how much of the current legal regime, including many gender distinctions supported by second- and third-wave feminists, would be disrupted if the Court finally adopted Ginsburg's "strict scrutiny" standard. Affirmative action for women in universities, public contracting and hiring would be far harder to justify. A bill pending in Congress that would authorize schools to experiment with single-sex programs in elementary and secondary public schools would be constitutionally vulnerable.
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Now that the historic moment of decision has arrived at last, it's remarkable how tinny and formulaic the familiar arguments appear. In a brief for the ACLU and the National Women's Law Center, Ginsburg's former colleagues Susan Deller Ross and Wendy W. Williams dutifully recite the arguments, refined and repeated in hundreds of briefs during the 1970s: sex, like race, is an "immutable characteristic unrelated to ability"; Women, like blacks, have suffered from a "long history" of discrimination in the United States; and women, like blacks, are "underrepresented in the political process." (They constitute only 11 percent of U.S. representatives and 21 percent of state legislators.)
Although these arguments were powerful and important in the 1970s, they seem increasingly strained in the 1990s. As Linda Chavez, Christina Hoff Sommers and Abigail Thernstrom argue in their brief for the Independent Women's Forum, women are hardly politically powerless today: unlike blacks, they constitute a majority of the population; and in practice, women have had meaningful access to the ballot for much longer than blacks have. Nor are women excluded from the workplace–they constitute over 45.9 percent of the civilian labor force–or systematically denied professional opportunities. Finally, to compare the discrimination suffered by women to the discrimination suffered by blacks is historically simplistic: after the turn of the century, for example, Progressive women's suffrage advocates made a Faustian alliance with white Southern racists and built male support for the Nineteenth Amendment by pledging to support the disenfranchisement of blacks with literacy tests and poll taxes.