Sexual equality jurisprudence has produced controversial results. Some courts and commentators addressing women’s equality in the context of hazardous employment have characterized sexual equality as the right of women to subject themselves to employment that is as mutagenic, teratogenic, or carcinogenic as men’s employment. Some judges and feminists analyzing women’s equality in the context of pregnancy disability leave and benefits have characterized sexual equality as the right of women to be denied pregnancy disability benefits or leave-just as men are. These effects of “equality” indicate that sexual equality jurisprudence often errs by reasoning from a lofty abstract ideal down to a grotesque specific.

Feminists have been among the worst offenders. Much of feminist jurisprudence treats sexual equality as an ideal value – whether of the “equal treatment” or “positive action” sort – and lacks an appreciation of equality’s economic consequences for the majority of working women. Court decisions construing Title VII’s antidiscrimination provisions and the fourteenth amendment’s equal protection guaranty also lack an explicit theory allowing for the appreciation of the economic consequences of current equality theory. These failures of theory, by feminists and the judiciary, produce contradictory and controversial results in both cases.

What the courts, feminists, and legislatures are struggling to comprehend is the meaning of sexual equality under conditions of scarcity. Unless equality theory sheds its idealism and takes into account the material economic necessity posed by such scarcity, it will remain an inadequate tool.