Protecting sex: sexual disincentives and sex-based discrimination.

AuthorWeinrib, Laura
PositionCase Note

"Male and female are created through the eroticisation of dominance and submission. The man/woman difference and the dominance/submission dynamic define each other.... The feminist theory of knowledge is inextricable from the feminist critique of power because the male point of view forces itself upon the world as its way of apprehending it." (1)

Catharine MacKinnon

Catharine MacKinnon's famous formulation of the social and political struggle between men and women as a manifestation of men's sexual subordination of women has informed feminist debate for the past two decades. The fundamental project of radical feminism was to demonstrate that sex discrimination and sexual domination are one and the same. Against this backdrop, recent developments in feminist and queer theory have turned the equivalence of sex and sexuality inside out--a dissociation that has played out prominently in the context of legal scholarship, particularly with respect to rape, pornography, and sexual harassment. This effort to rehabilitate "deviant" sexuality entails rescuing the fight against sex discrimination from the vilification of sex.

Whatever one's feelings on the relationship between sex and sex-based discrimination, they are likely to be reserved for academic debate. The successful application of equal protection doctrine to such sex-laden topics as birth status, contraception, and abortion has had the unfortunate side-effect of submerging judicial discussion of sexual subordination and sexual freedoms in favor of less contentious issues of biological equality and difference. The blanket omission of sexuality from sex discrimination decisions--despite the sustained theoretical frenzy surrounding the issue--is striking.

This Article considers a recent United States Supreme Court decision to explore the tension between sexuality and equal protection doctrine and to explain the practical ramifications of the erasure of the former from the latter. It identifies a sex-regulatory element of immigration law that could, in theory, be incorporated into a sex discrimination claim. But it suggests that such a claim, even if it were to succeed (an unlikely prospect) within the current doctrinal framework, would achieve only as much as any discrimination claim can-it would compel the government to treat everyone equally well or equally badly. This Article, then, is chiefly a descriptive undertaking. Its objective is to point out the omission of sexuality from current doctrine and to identify the ramifications of that omission.

In 2001, the Supreme Court decided Nguyen v. INS, (2) a case that challenged one of the last facially discriminatory statutes that remains on the books. (3) Title 8 U.S.C. [section] 1409 (4) specifies the naturalization procedures for the foreign-born children of unmarried United States citizens. The child of an unmarried citizen-mother is considered to have acquired United States citizenship at birth as long as her mother has at some point prior to childbirth lived in the United States or its territories for a continuous period of one year. (5) For the child of an unmarried citizen-father, however, the naturalization requirements are far more burdensome. (6)

Those additional burdens weighed heavily on Tuan Anh Nguyen. Born in Saigon to a Vietnamese mother and an American father, (7) Nguyen arrived in the United States at the age of five and lived with his father in Texas throughout his minority. At the age of twenty-two, Nguyen pled guilty to two counts of sexual assault on a child, and the INS initiated deportation proceedings. (8) In 1998, in Miller v. Albright, (9) Justices Stevens and Rehnquist failed to assemble a majority willing to decide whether [section] 1409(a) discriminated on the basis of sex in violation of the Equal Protection Clause. Justices O'Connor and Kennedy concurred in the judgment on the basis that the plaintiff in that case, the daughter of a citizen-father, lacked standing. (10) In Nguyen, the petitioners therefore pursued the equal protection claim of Nguyen's father, Michael Boulais. Section 1409(a), they argued, impermissibly discriminated against fathers.

The five-justice majority rejected Boulais's equal protection claim, holding that [section] 1409(a) serves at least two important governmental objectives: it facilitates the identification of a biological parent-child relationship, and it ensures the opportunity for "everyday ties that provide a connection between child and citizen parent and, in turn, the United States."(11) The Court further found that [section] 1409(a) accomplished these objectives through substantially related means. The dissent criticized the majority for its reliance on sex-based stereotypes about childbearing and rejected both of the purported governmental interests. Because the majority was unable to identify an "exceedingly persuasive justification" for the sex-based classification created by [section] 1409(a), the dissent would have found an equal protection violation.

To date, there have been markedly few academic defenses of the Court's decision in Nguyen and of the similar arguments in Miller. Rather, camps that agree on little else have come together to criticize the majority opinion as sexist, narrow-minded, and patently conservative. (12) The critiques seem to betoken a partial victory for the feminist ideals of an earlier generation: critics and the dissenting justices are practically unanimous in their willingness to accept that preferential treatment of mothers amounts to entrenching gender norms. While I agree that [section] 1409(a) carries many undesirable consequences, it is not clear to me that symbolic indicia of subordination and stereotyping are chief among them, nor that equal protection analysis of the kind propounded by the dissent is the best means of redressing them. (13)

Nguyen is about more than formal inequality--it is about writing sexual subordination out of the narrative in order to prevent it down the road. Childbirth, unlike employment discrimination or educational barriers, is uniquely sexual in its origin. So long as children are born predominantly through sex, sexual relationships deserve consideration. Radical feminism, whatever its failings, facilitates an important intervention. If sex discrimination is premised on the possibility of sexual abuse, then the desirability of confining women to the home, as married mothers, originates in sex--and the exclusion of children produced through non-normative sexual acts, unless they are redeemed by their fathers, makes all the sense in the world.

Part I of this Article sketches the legal backdrop against which Nguyen was decided. Nguyen is situated at the intersection of several distinct bodies of developing law. As a sex-based equal protection claim, Nguyen challenges a statute that facially discriminates against men, a class that is neither traditionally suspect nor anything close to a discrete and insular minority. It is reflective of the pervasive success of feminist legal reform efforts of the past decades that even the majority was more interested in examining the implications of ?? 1409(a) for stereotyping women as traditional caregivers than in the barriers to citizenship imposed uniquely on the children of men, which the Court dismissed as administrative inconveniences. Nevertheless, the majority ultimately rested its validation of the policy on biological essentialism. "The difference between men and women in relation to the birth process is a real one," the majority emphasized, "and the principle of equal protection does not forbid Congress to address the problem at hand in a manner specific to each gender." (14)

Although Nguyen came to the Supreme Court as a sex discrimination case, it is first and foremost an immigration case. The majority declined to dismiss the case on the grounds of Congress's plenary immigration power (though neither did they take the opportunity to overrule the doctrine). The ramifications of Nguyen's status as a case about naturalization and citizenship are nevertheless indispensable to the Court's analysis of Nguyen's equal protection claim. More broadly, citizenship and sex are closely related, both historically and symbolically.

Part II reviews the majority and dissenting opinions in Nguyen and highlights the tensions between those opinions and the precedent outlined in Part I. Part III begins with a critique of Nguyen with respect to the inadequacies of equal protection doctrine. It then examines sex and sexuality and their omission from the legal and academic discussions of Nguyen in particular and sex discrimination in general. The question, for the purposes of this Article, is not on what alternative basis Nguyen might have been decided that would have avoided encountering these shortcomings of equal protection analysis. (15) Rather, I ask, what is the cost of omitting sex from the discussion? Nguyen is not just about men and women. It is, fundamentally, a case about sex. Limiting the discussion to equal protection analysis has occluded the inherently sexual dimension of Nguyen's saga--from the sex that produced Nguyen to the sex that got him deported. Is there a role, then, for reading the regulation of sexuality into purportedl y unsexualized laws? What are the costs of not doing so? And even if there is a descriptive benefit to such an undertaking, is it relevant to the project of normative legal reform?

  1. THE LEGAL LANDSCAPE

    The narrative disjunction of Nguyen's legal course complements the complexity of his constitutional challenge. Although the purpose of this Article is to explore what is missing in the Court's analysis of Nguyen v. INS--and in equal protection precedent in general--that task cannot be accomplished without first assessing what is present. Given the many parallels and inconsistencies between Nguyen and recent equal protection decisions, it will be useful to review the relevant developments in sex-based...

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