Sexual Discrimination in the United States

Introduction to Sexual Discrimination

Classification by Sex

The Constitution speaks of the civil rights of “the people,” “persons,” and “citizens.” Nowhere does it make its guarantees only to “men” or separately to “women.” The only reference to sex is in the 19th Amendment, which forbids denial of the right to vote “on account of sex.”

Gender has long been used as a basis of classification in the law, however. By and large, that practice reflected society’s historic view of the “proper” role of women. Most often, laws that treated men and women differently were intended to protect “the weaker sex.” Over the years, the Supreme Court read that view into the 14th Amendment. It did not find any sex-based classification to be unconstitutional until 1971.

In the first case to challenge sex discrimination, Bradwell v. Illinois, 1873, the Court upheld a State law barring women from the practice of law. In that case, Justice Joseph P. Bradley wrote that: “The civil law, as well as nature itself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy of the female sex evidently unfits it for many of the occupations of civil life.” (Concurring Opinion)

Even as late as 1961, in Hoyt v. Florida, the Court could find no constitutional fault with a law that required men to serve on juries, but gave women the choice of serving or not.

Matters are far different today. The Court now takes a very close look at cases involving claims of sex discrimination. It first did so in Reed v. Reed, 1971; there, the Court struck down an Idaho law that gave fathers preference over mothers in the administration of their children’s estates.

Since then, the Supreme Court has found a number of sex-based distinctions to be unconstitutional. In Taylor v. Louisiana, 1975, the Court held that the Equal Protection Clause forbids the States to exclude women from jury service. Among other examples, it has also struck down an Oklahoma law that prohibited the sale of beer to males under 21 and to females under 18, Craig v. Boren, 1976. Also unconstitutional is the practice of refusing to admit women to the rigorous citizen-soldier program offered by a public institution, Virginia Military Institute, United States v. Virginia, 1996.

In the same vein, the Supreme Court has upheld a California law that prohibits community service clubs from excluding women from membership, Rotary International v. Rotary Club of Duarte, 1987. It also upheld a New York City ordinance that forbids sex discrimination in any place of public accommodation, including large private-membership clubs used by their members for business purposes, New York State Club Association, Inc. v. City of New York, 1988.

The Court’s present attitude was put this way in Frontiero v. Richardson, 1973:

“There can be no doubt that our nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.” (Justice William J. Brennan, Jr., Opinion of the Court). In this case the Court, for the first time, struck down a federal law providing for sex-based discrimination, as a violation of the 5th Amendment’s Due Process Clause. That law gave various housing, medical, and other allowances to a serviceman for his wife and other dependents, but it made those same allowances available to a ser-vicewoman only if her husband was dependent on her for more than half of his support.

Not all sex-based distinctions are unconstitutional, however. The Supreme Court has upheld some of them in several cases. You saw one example of this in Michael M. v. Superior Court, 1981. Similarly, the Court has upheld a Florida law that gives an extra property tax exemption to widows, but not to widowers, Kahn v. Shevin, 1974; an Alabama law forbidding women to serve as prison guards in all-male penitentiaries, Dothard v. Rawlinson, 1977; and the federal selective service law that requires only men to register for the draft and excludes women from any future draft, Rostker v. Goldberg, 1981.

In effect, these cases say this: Classification by sex is not in and of itself unconstitutional. However, laws that treat men and women differently will be overturned by the courts unless:

• they are intended to serve an “important governmental objective” and
• they are “substantially related” to achieving that goal.

In upholding the all-male draft, the Court found that Congress did in fact have an important governmental objective: to raise and support armies and, if necessary, to do so by “a draft of combat troops.” “Since women are excluded from combat,” said the Supreme Court, they may properly be excluded from the draft.

Cause of Action Against Private Club or Association for Sex-based Discrimination: an Overview

This section examines this type of action. This subject identifies the various elements of the Cause of Action Against Private Club or Association for Sex-based Discrimination, offering a practical approach to the litigation issues of this cause of action. See also the entry about legal risks.

Resources

Further Reading

• Information about Sexual Discrimination in the Gale Encyclopedia of American Law.