Sex Equality's Irreconcilable Differences.

AuthorCahill, Courtney Megan

FEATURE CONTENTS INTRODUCTION 1068 I. SEX EQUALITY, REAL DIFFERENCES, AND ANTI-STEREOTYPINC 1084 A. Real Differences 1084 1. Biology Is Neutral, or Biology Is Not Bigotry 1095 2. The Two Sexes Are Not Similarly Situated When It Comes to Biology 1095 3. The Law of Averages Controls 1096 4. History Matters When Evaluating What Counts as a Real Difference and Whether Laws Based on that Difference Are Constitutional 1097 B. Anti-Stereotyping 1097 1. Anti-Stereotyping Looks Suspiciously on Biology as a Reason to Discriminate on the Basis of Sex 1099 2. Anti-Stereotyping Condemns Laws that Treat Men and Women as Different When They Are the Same 1099 3. Anti-Stereotyping Prioritizes Individual or Exceptional Cases over Averages or Generalities 1100 4. The Legality of Sex Distinctions Is Measured According to Contemporary Norms and Values, Not History and Tradition 1101 C. Strange Bedfellows 1102 II. LGBTQ EQUALITY, REAL DIFFERENCES, AND ANTI-STEREOTYPING 1106 A. Real Differences as a Constraint on LGBTQ Rights 1106 B. LGBTQ Equality as a Constraint on Real Differences 1108 1. Transgender Discrimination 1110 a. Legal-Sex Changes 1111 b. Insurance Coverage for Gender-Affirming Care 1115 c. Public-Facility Access 1118 d. Employment Discrimination 1121 e. Sports and Medical-Treatment Bans 1122 2. Discrimination Against Same-Sex Couples 1125 III. SEX EQUALITY'S IRRECONCILABLE DIFFERENCES 1128 IV. AFTER DIFFERENCES 1133 A. Sex Equality Without Differences 1134 l. Judicial Scrutiny of Sex Classifications Under the Constitution 1134 2. Legislative Sex Distinctions 1138 3. Sex Separatism 1143 B. Anticipated Criticisms (and Responses to Them) 1144 CONCLUSION 1146 INTRODUCTION

One legal doctrine tolerates criminal abortion laws on the ground that only women have abortions, (1) but a kindred doctrine recognizes that men can get pregnant (2--)and, by implication, have abortions.

One legal doctrine tolerates sex discrimination in federal immigration law on the ground that children cannot be born of men, (3) but a kindred doctrine rejects sexual-orientation discrimination in federal immigration law on the ground that children can be "born... of" men. (4)

One legal doctrine tolerates female-only criminal topless bans on the ground that women have physiologically distinct "female breasts," (5) but a kindred doctrine recognizes that trans men can be legal males without removing their "female breasts." (6)

The first doctrine in each scenario above is sex equality's doctrine of real differences. The second is the law of LGBTQ equality. It is this Feature's objective to surface the tensions between the two in the hopes of building on sex equality's existing strengths and of actualizing its untapped potential.

Last June, the Supreme Court relied on biology when it rejected the argument that a criminal abortion law rested on illegal sex stereotypes about women and mothers. (7) Writing for the majority in Dobbs v. Jackson Women's Health Organization, Justice Alito reasoned that abortion distinctions were not even sex classifications, let alone illegal sex discrimination or sex stereotyping, because abortion was unique to women. (8) "The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a 'mere pretex[t] designed to effect an invidious discrimination against members of one sex or the other,'" said Alito. (9) In other words, because only women had abortions, (10) laws criminalizing abortion were nonsex classifications subject to (and constitutional under) rational-basis review (11) rather than heightened scrutiny, the level of judicial review that sex classifications both warrant (12) and need to smoke out illegal sex stereotypes. (13) Dobbs said something that the Court has hinted at but never said explicitly: that laws based on characteristics unique to either sex are not sex classifications within the meaning of the Constitution. (14) In so doing, the Court set the stage for biology to be an even greater roadblock than it already is to meaningful judicial review of sex discrimination.

Biology has always constrained what sex-discrimination jurisprudence--or sex equality--can, or is willing to, do. (13) Sex equality's crown jewel is the anti-stereotyping principle, (16) which condemns laws reflective of gross generalizations about the way that women and men are. (17) The anti-stereotyping principle has uprooted a lot of biologically rationalized sex discrimination, but it has never gone all the way: that is, it has never condemned all biologically rationalized sex discrimination. Rather, at some point, anti-stereotyping hits a wall of "real differences between the sexes" or "inherent biological differences between the sexes," and it stops. Those inherent differences include pregnancy and birth, (18) body parts (like breasts), (19) strength and stature, (20) violence, (21) athletic ability, (22) parental bonding, (23) parental identification, (24) and some parental responsibilities, both before and after a child is born. (25) If a law treats women and men differently because of these differences, it is usually upheld on the ground that biology is real, as opposed to being a stereotype or a manifestation of bigotry. (26) As one court recently put it: laws based on "physical differences between men and women" are not "stereotypes about men and women." (27) Biological justifications for race discrimination-once common (28)--are now universally condemned as xpressions of racism and bigotry. (29) By contrast, courts regularly tolerate biological justifications for sex discrimination as constitutionally innocuous expressions of fact. Even anti-stereotyping landmarks that reject biological rationales on anti-stereotyping grounds carve out space for some biologically rationalized sex distinctions to remain. (30)

This Feature argues that sex equality's juggling act between anti-stereotyping and real differences should not survive what an allied doctrine increasingly shows: that biologically rationalized sex discrimination is a sex stereotype--all the way down. That allied doctrine is LGBTQ equality, defined as the statutory and constitutional law addressing the rights of people who depart from sex and gender norms. Using recent developments in LGBTQ equality surrounding sex, the body, procreation, and parenthood, this Feature unsettles sex equality's beliefs in the reality of biological differences between the sexes and in the legality of laws based on those differences. It urges sex equality to grapple with what LGBTQ equality has to say about biology and its role in lawmaking and imagines what the American law of sex might look like when it does.

Anti-stereotyping and real differences have always been in conflict. For example, the anti-stereotyping principle prohibits laws that overgeneralize about men and women;" laws that treat men and women differently when they are, in fact, the same; (32) laws that prioritize groups over individuals; (33) and laws that look backward rather than forward in time to determine whether sex discrimination is legal today. (34) Biologically rationalized sex discrimination does all of the above, and yet, sex equality continues to insist that laws based on real differences are not sex stereotypes. (35)

Similarly, the anti-stereotyping principle prohibits laws that reflect and reproduce social judgments about men and women, but biologically rationalized sex discrimination allows social judgments about men and women to flourish in plain sight. (36) For example, the Supreme Court has condoned laws that assume that fathers have less robust connections to their children at birth than mothers--a social judgment--by casting those laws as neutral expressions of a biological fact, namely, the fact that no man can give birth. (37)

Likewise, the anti-stereotyping principle condemns laws that create "selffulfilling prophecies" (38) about men and women, but laws rooted in real differences create self-fulfilling prophecies about men and women. For example, real differences helps explain why federal employment law provides leave protection to expectant mothers but not to expectant fathers to attend parenting classes and prenatal appointments. (39) However, leave protection for mothers but not fathers to engage in caretaking before pregnancy leads to "[s]ticky behaviors marking women as caregivers and men as providers" well after pregnancy is over, as David Fontana and Naomi Schoenbaum argue. (40) Similarly, real differences is one of the reasons for female-only criminal topless bans, (41) but female-only criminal topless bans make us see women's bodies--and women generally--as inherently sexual. (42) In both of those examples, it is the logic of real differences that ends up creating the very differences that the anti-stereotyping principle ought to reach. (43)

While always in tension with sex equality's anti-stereotyping principle, real differences is increasingly in tension with LGBTQ equality. For years, real differences stymied LGBTQ equality. Transgender people could be denied marital, parental, and employment rights because their biology did not fit their gender identity. (44) Individuals could not change their legal sex on official documents like birth certificates because sex was immutable. (45) Same-sex couples could not legally engage in consensual sex nor marry because they could not procreate with each other. (46)

Increasingly, however--and in some contexts, overwhelmingly--LGBTQ equality is unsettling real differences. It is doing so in two ways. First, LGBTQ equality is upending the reality of real differences by recognizing phenomena--like pregnancies in men, (47) children being "born... of" two women or two men, (48) and nonbinary sex designations (49)--that real-differences arguments overlook. Second, LGBTQ equality is unsettling the legality of real differences by rejecting biological justifications for LGBTQ...

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