The stubborn persistence of sex segregation.

Author:Cohen, David S.
 
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INTRODUCTION

Almost fifty years ago, Congress began protecting against sex discrimination in federal statutory law. Almost forty years ago, the Supreme Court expanded constitutional law to include protection from discrimination based on sex. Since then, guarantees against sex discrimination have proliferated in federal and state law, and societal norms of sex equality have become entrenched. Yet, we still live in a society that is highly segregated by sex.

And not just sex segregation in the same way race segregation persists--the de facto race segregation that persists, despite de jure segregation disappearing decades ago, in patterns of housing, education, employment, relationships and other areas of life. Rather, the sex segregation most people encounter on a daily basis is sex segregation that is required by rule.

Despite its predominance, the persistence of sex segregation has been an under-studied and under-theorized phenomenon in the United States. Legal scholars have studied particular instances of sex segregation, such as in education, (1) the military, (2) restrooms (3) and athletics. (4) However, scholars have paid very little attention to the topic generally, in all of its manifestations. (5)

This Article forms the foundation of a multi-part project that will analyze sex segregation as a systemic issue by exploring the contours of modern American sex segregation and what this phenomenon means for law, feminism, gender and identity. In this Article, I set the stage for the entire project by providing a systematic account of sex segregation in America. In addition, I situate this empirical data within a broader doctrinal and theoretical framework. In a second article, l analyze sex segregation and its implications for masculinity, arguing that sex segregation in its many forms contributes to constricting notions of masculinity that lead to the subordination of women as well as of men who do not conform to traditional notions of masculinity. (6) In a related book chapter, I have also begun to analyze the deleterious consequences sex segregation has for transgendered, intersexed and gender variant individuals. (7) I plan to more fully explore this issue in the future, including sex segregation's important implications for women, people of color and society as a whole. My goal in this piece and the others that will build upon it is to provide a comprehensive framework for thinking and dealing with the problem of sex segregation.

It is important to be clear about the significance of current sex segregation in the United States. In this project, I in no way intend to equate the way that people are segregated based on sex in today's United States to the way people are segregated by sex elsewhere in the world or to the way people were segregated based on race in American history. As troubling as I will argue modem American sex segregation is, in other parts of the world sex segregation is exponentially worse. (8) Moreover, sex segregation that currently exists in the United States is a markedly different institution than race segregation as it existed throughout much of American history. (9)

However, modern American sex segregation nonetheless has serious implications and effects that need to be studied comprehensively. Sex segregation, as described throughout this Article and the follow-up pieces to come, often limits human expression and self-definition in ways that go to the heart of a person's identity and that reinforce power relations based on sex and gender. Thus, although they are in no way equal to the harms associated with race segregation, the issues related to sex segregation are serious and worthy of study.

This Article analyzes the topic of sex segregation in five parts. First, the Article defines the term "sex segregation." Sex segregation, as 1 am using the term throughout the project, is the complete exclusion or separation of people based on whether they are biologically a man or a woman. Second, the Article establishes why sex segregation is particularly worthy of study now. Two important developments indicate that sex segregation remains salient and may become even increasingly so: the 2006 change from the Department of Education that gave schools greater authority to segregate students based on sex and the increased scientific attention to claims that men and women are inherently different.

Third, in the heart of this Article, I provide the empirical evidence related to sex segregation in the United States. Hundreds of laws in the United States segregate based on sex, and this part of the Article describes and categorizes the laws, not based on their subject matter, but rather on how they segregate. This part also details the ways that government institutions and private entities segregate based on sex without explicitly being required or permitted to do so by law. In cataloging sex segregation in the United States, I develop a taxonomy of sex segregation: mandatory, administrative, permissive and voluntary sex segregation.

Fourth, after providing the empirical data, I discuss the way the law addresses sex segregation. For government mandates of sex segregation and government institutions that sex segregate, constitutional equality doctrine poses problems. For both government institutions and private actors that sex segregate, anti-discrimination laws also determine when sex segregation is allowed. Further complicating the analysis, private actors have a constitutional right to freedom of association that enters the legal analysis.

Finally, after establishing the context with respect to sex segregation and current equality law, 1 will outline six theoretical approaches, most grounded in feminist legal theory, to how law should address sex segregation. Feminist legal theory has many different and divergent understandings of equality, and those various formulations provide different answers to the issue of sex segregation. 1 will set forth these different approaches and begin the argument in favor of an anti-essentialist theoretical approach that would prohibit all but the most private or necessary forms of sex segregation. As I begin to argue in this Article and build on in the pieces that follow, this anti-essentialist approach, although far from perfect, best responds to the inequalities associated with sex segregation and captures the diversity of people that law and society try to categorize by the labels "man" and "woman." Because of the various ways in which modern sex segregation plays a major role in limiting personal identity and overall equality by forcing people to fit into a strict sex/gender binary, this theoretical framework is the preferable approach to take with respect to sex segregation.

  1. Defining "Sex Segregation"

    To understand sex segregation, first the term itself must be defined, and that requires parsing each of the words that constitutes the term. The "sex" in "sex segregation" refers to the apparent biological distinctions between men and women. "Sex" stands in contrast to "gender." Although there are ways in which the two terms are blurred, (10) in legal scholarship the most widely understood and important difference between the two is that "sex" refers to apparent biological distinctions whereas "gender" refers to the attributes society generally associates with biologically different sexes. (11) Thus, when I use the word "sex" throughout this Article and the project as a whole, I am referring to the biological categories of "men" and "women" or "male" and "female" (and, for younger individuals, "boys" and "girls"). (12) When I use the word "gender," I am referring to the categories of "masculine" and "feminine," categories that society generally associates with, respectively, men and women. (13)

    This distinction between "sex" and "gender" is of utmost importance in the study of segregation, as a simple example makes clear. One of the instances of sex segregation that I cover later in this Article is the federal law that requires "every male citizen of the United States, and every other male person residing in the United States" to register for the draft between the ages of eighteen and twenty-six. (14) This provision quite clearly applies to sex, since it requires people who are biologically men, and not people who are biologically women, to register for the draft.

    No one would contend that this provision requires every person who exhibits masculine characteristics (however those characteristics are defined), which would include masculine men and masculine women, to register for the draft. Congress certainly could have based the draft requirement on such characteristics and done exactly that--required those people, both biological men and biological women, who exhibit masculine characteristics to register for the draft. If Congress had done so, it would have segregated based on gender. However, Congress chose to base the segregation on sex, as the registration requirement applies based on a person's biological sex, not gender. That said, many of the laws mentioned in this Article incorrectly use the word "gender" in place of "sex," (15) and the Supreme Court often misuses the two terms as well. (16) All of the types of segregation described and analyzed here concern sex for the simple reason that none of the instances of segregation can reasonably be understood to separate masculine men and women from feminine women and men.

    The second term that needs to be defined is "segregation." By "segregation," I am referring to laws, rules or policies that require complete separation of men and women, or that completely exclude either men or women from participating in an activity. (17) I am not referring to de facto segregation, where no law, rule or policy separates or excludes men or women but for reasons such as societal pressures, historical practices or socialized preferences, the result of an open policy is that only men or only women are...

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