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Sex Equality
University of Illinois School of Law
Burkstrand-Reid, Beth

I.                   Introduction
a.       Sex v. Gender
                                                              i.      Sexà physical, biological (chromosomally)
                                                            ii.      Genderà social construct (what does it mean to be man/woman)
                                                          iii.      Gender identity does not necessarily conform to sex
                                                          iv.      Intersectionalityà Latina woman, Black man, etc.
b.      Equality between the sexes
                                                              i.      Formal equality
1.      Equal under the law
2.      Neutral terms, level playing field, equality of opportunity
3.      Often used by conservative jurists
                                                            ii.      Substantive equality
1.      Equality of outcome
a.       Ex) who actually gets custody of children under 3
2.      Often used by liberal jurists
                                                          iii.      Assimilationist
1.      Believe that whether you are a man/woman should have no legal significance whatsoever
2.      We are all the same
3.      Wasserstromà “assimilationist ideal”
a.       Nonsexist society would be like a nonracist society, where sex, like race, would be a wholly unimportant characteristic of individuals, having no greater significance than eye color
b.      However, prohibition against sexual classification must be flexible enough to accommodate legitimate sources of distinction (biological)
                                                          iv.      Anti-assimilationist
1.      Of course there is a difference between man/woman: pregnancy
2.      Wolgastà sexual differences between men and women should be institutionalized and valued
a.       Use differences as a basis for assignment of social roles
b.      Women contribute distinctly to professions and to diversity of culture
c.       Feminist theory
                                                              i.      Unitary theory
1.      Based on equality of women and men
2.      Choiceà reject the notion that someone else should make a choice for them
                                                            ii.      Varied (for example…)
1.      Liberal: change happens within the current system
a.       These women tend to go into professions like the law
2.      Socialist
3.      Radical: believe the system is so inherently flawed that it must be torn apart and redone
4.      Eco: see oppression of women as linked to the degradation of the environment
5.      Black: intersectionality
                                                          iii.      Five Opening Moves
1.      Women’s experience
a.       Knowledge should inform feminist scholarship
b.      Personal stories are important because they give women a voice, and for a very long time women’s voices weren’t included
c.       There was no name for sexual harassment until women told stories about it
2.      Implicit male bias
a.       Uncover male biases and male norms in rules, standards, and concepts that appear neutral on their face
b.      Invisible structure of power: there are more women, but we are subordinate to men
c.       The law was written by men, so look at structures underlying decisions favoring men (or women)
d.      Ex) 40 hour work week is average time MAN works, which hurts part-time workers who are more often female
3.      Double binds & dilemmas of difference
a.       Situations where there are few options and all expose one to a penalty
b.      What has the woman exchanged for progress?
c.       Ex) part time work, but no benefits, promotion, or security; no promotion because you are not “feminine enough,” in a career where you cannot succeed unless you are aggressive
4.      Reproducing male domination
a.       Resiliency of sex discrimination
b.      Things become not better, just different
c.       Ex) female professors teach family law and are not tenured
5.      Unpacking women’s choices
a.       Investigating the constraints under which women make choices
b.      Law typically presupposes women’s choice derive them from either biological imperatives, or early socialization
c.      

their position compared to other men, not compared to women
                                                        vii.      Obama and masculinities theory
1.      Obama sufficiently feminized himself to appeal to women, but not so much so that he angered men
a.       Contrasted with Clinton as more collaborative, more human, more feelings-led, and more people-focused
2.      Bipolarity of media representation of black men
a.       Good black man- assimilationists
b.      Bad black man- angry/aggressive, race-conscious
                                                                                                                                      i.      Obama distanced himself from the bad black man
II.                Due Process and Equal Protection
a.       Sex Equity in the Constitution
                                                              i.      Equal Rights Amendment
1.      Never passed
2.      Proposed after women’s suffrage, but was never ratified
3.      However, some states have passed the ERA in their state constitutions
                                                            ii.      Fifth Amendment
1.      Due Process Clause
2.      Equal protection is not literally there, but is read into it
3.      Federal
4.      In the facts: look for fundamental rights and liberties
                                                          iii.      Fourteenth Amendment
1.      Equal Protection Clause & Due Process Clause
2.      State
3.      In the facts: look for classifications
                                                          iv.      Privacy
1.      Not literally guaranteed in the Constitution
2.      Typically invoked with reproductive rights and health