The courts have not wholeheartedly embraced the idea of equality of the sexes, and therefore do not attack sex discrimination with the same vigor as they attack racism. Rather, the courts are equivocal about sexual equality and weigh equality less carefully for sex than for race. Color is thought an arbitrary distinction; gender, however, is assumed to be something of substance.
When courts sustain sex discrimination, they generally do not characterize it as such. Rather, differences between the sexes, both real and imagined, are used to justify the gender distinction. It is easy to be hypnotized by the purported differences between the sexes: to never question how oppressive sexual stereotypes weave themselves inextricably into the fabric of our society.
To confront the sexism embedded in our society by the use of such stereotypes, we must challenge even the most common assumptions and prevent the perpetuation of false and damaging myths about the differences between men and women. This is what the courts have failed to do.
One of the most insidious assumptions about differences between the sexes has to do with the male sex drive. It is presumed to be stronger than the female sex drive, easily provoked and irresistible. This assumption has been incorporated into the law in several ways. The idea that women need protection from that male impulse has been used as a means of upholding statutes and practices that discriminate against women. This idea can be found in Supreme Court decisions as well as in lower federal and state court cases.
The failure of the courts to question this myth is a symptom of the general blindness of the judiciary to the depth of sexual discrimination. Generally, the courts have not been willing to scrutinize sexual stereotypes on the basis of the inequality and damage which these stereotypes create. The courts only seem willing to challenge stereotypes after they have become outdated. The failure to ratify the Equal Rights Amendment has eliminated the possibility of a speedy legislative solution to the intransigence of the courts.
The courts fail to address the fact that the burden of sex discrimination always falls on women. Any real differences are equal differences: women are as different from men as men are from women. Yet in the legal system, when the court notes “real” differences between the sexes as a reason for discrimination, women consistently lose.
This phenomenon reveals how the law assumes a male point of view.Male behavior is assumed to define the norm. Therefore, any departure from that norm is treated as a “defect.” Women are expected to bear the burden of that “defect” and behave in such a way as to fit within the male norm. Surely if the law saw the world through women’s eyes, the burdens derived from the differences between the sexes would be distributed equally.
Equal protection analysis rests upon the legal principle that people “similarly situated” must be treated similarly by the law. The Court has found that all races are similarly situated and thus has invoked “strict scrutiny” when the law creates racial classifications. However the Court has been unwilling to find that the sexes are completely “similarly situated.” In some cases, the Court found that the difference between the sexes justifies the sex-based classifications. Therefore, the Court developed a lower standard of review for classifications based on sex—as opposed to race—discrimination.
The courts persistently find the sexes not similarly situated when sex becomes sex—when men and women mingle, when sex means more than mere gender. The courts have assumed that men’s sexual urges are greater than those of women. Therefore, the law has incorporated this “physical” difference with two results: women are protected from these urges, and men are excused from their “animal nature.” The judicial solution to the difference between sex and sex has been the doctrine that, until proven otherwise, separate will be presumed to be equal in the context of sex.
“Separate but equal” was rejected in the area of race because the Supreme Court found that this rationale perpetuated the racial distinctions on which it was based and resulted in a society which was separate but unequal. In so holding, the Court was not hindered by the idea that blacks needed protection from whites.
In contrast, the Court has not considered whether women’s inferior status is perpetuated as a result of courts excusing behavior by men under the rubric of men’s “uncontrollable urges” and courts proclaiming that women need protection from men. This article discusses the courts’ articulation of the assumed hazards of integrating the sexes and analyzes the severe obstacles such reasoning imposes on the struggle for women’s rights.
The judiciary avoids squarely addressing sexuality issues. Instead, it alludes darkly to an inherent problem in mixing the sexes. Phrases such as “moral and social problems,” “risks,” and “womanhood,” are in-tended to evoke a sense of recognition in the reader that needs no more explication.
Consistently, courts have held that the threat of arousing deep urges in men justifies the finding that men and women are not similarly situated. Once this threat is introduced, women lose: they lose jobs, they lose educational opportunity, they lose credibility as complainants in rape cases, they lose the ability to take sexual initiative, and they lose liberty through incarceration. Men have corresponding gains from these assumptions. Men gain the jobs women lose, men gain seniority in the work environment, men are granted excuses for their crime. Generally men have access to the world without fear.
This article is divided into two parts. It will first examine the judicial history of the assumption of the male irresistible impulse and then focus on its present application in employment, education, and criminal areas.
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