Stereotyping and Difference: The Future of Sex Discrimination Law

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In Planned Parenthood v. Casey,(1) the Supreme Court reaffirmed the holding of Roe v. Wade(2) that the Constitution protects a woman's right to choose abortion before fetal viability. But the Casey joint opinion(3) based its holding not only on the right to privacy recognized in Roe, but also on principles of sex equality. Many scholars have recognized the significant equality themes that run through the Casey joint opinion.(4)

Casey's recognition of the sex discrimination inherent in restrictive abortion laws highlights the paradox of modem sex discrimination law under the Fourteenth Amendment. Although the Court has invalidated statutes under the Equal Protection Clause based on the sort of role typing condemned by the Casey joint opinion,(5) the Equal Protection Clause does not provide any protection against restrictive abortion laws.(6) Indeed, abortion laws fall outside equal protection analysis even while the Court claims that the central purpose of its sex discrimination jurisprudence under the Equal Protection Clause is to prohibit states from enacting laws based on stereotypical notions of women's proper roles. This Note explores this contradiction, examining how the Supreme Court reasons about stereotyping in the area of reproductive differences, and attempts to use the opinion in Casey to suggest a fuller concept of stereotyping and equal protection analysis.

Part I of this Note examines the centrality of stereotyping analysis to modem sex discrimination law under the Equal Protection Clause, noting especially the Court's understanding of stereotypes and the harms that flow from them. Part II looks at the doctrinal structure of stereotyping analysis, focusing on how the Court's narrow definition of sex-based classifications mediates the stereotyping inquiry. This Part then looks at equal protection cases involving women's reproductive capacity. In some cases, the Court, without conducting its stereotyping analysis, upholds statutes that discriminate against pregnant women. In other cases, the Court adopts a narrow understanding of stereotyping, limited to a failure to recognize similarities between men and women. This narrow definition does not cover stereotypical judgments about the proper roles of women when they are based on biological differences between the sexes.

Arguing from the historical treatment of women's reproductive differences, Part III suggests that harmful stereotyping has occurred and still occurs where men and women are not similarly situated. This Part examines the Court's decision in Casey and the different understanding of stereotyping we see in the joint opinion. It concludes by formulating a model of equal protection analysis based on the Casey joint opinion's equality analysis. Part IV applies the model suggested above to pregnancy discrimination and restrictive abortion laws. Finally, it suggests how we might rethink the comparison principle at the heart of equal protection law to produce a fuller understanding of equality in the context of sex differences.

1. STEREOTYPING AS THE CENTRAL PRINCIPLE OF SEX DISCRIMINATION Law

Stereotyping is the central evil that the Court's equal protection doctrine seeks to prevent. Indeed, the Court has described the harm of sex-based classification in terms of stereotypes about the proper roles of women. As Justice Brennan explained in Orr v. Orr, "Legislative classifications which distribute benefits and burdens on the basis of gender carry the inherent risk of reinforcing stereotypes about the `proper place' of women and their need for special protection."(7) In evaluating constitutional challenges to laws that discriminate based on sex, the Supreme Court has consistently held that state laws and practices reflecting stereotypical assumptions about women's proper roles are invalid under the Equal Protection Clause.(8)

Before examining the Court's decisions in this area, it will be useful to develop an understanding of the psychological concept of stereotyping. Stereotyping is a part of the normal process of categorization.(9) In a world too complex to know first hand, people need a way to simplify and organize. Stereotypes serve this function. As Walter Lippmann observed, stereotypes are the "pictures in our heads" that allow us to make sense of a world "with so much subtlety, so much variety, so many permutations and combinations."(10)

In categorizing the world, stereotypes describe the characteristics and personality traits that belong to individuals in a social group. For example, sex stereotypes describe men as strong, aggressive, and independent, women as passive, nurturing, and dependent.(11) These claims about men's and women's natures, like stereotypes about other groups, "often are overgeneralizations and are either inaccurate or do not apply to the individual" in question.(12)

Stereotypes also identify the expected patterns of behavior for a particular social group. Sex-role stereotypes specify the behaviors that are appropriate for men and for women.(13) These stereotypes define the proper roles of men and women not by reference to individuals' personality traits, but by the type of conduct desirable for each sex. While sex stereotyping makes an empirical generalization about the sexes, sex-role stereotyping is based on normative assumptions about the proper roles of men and women.(14)

The Supreme Court's sex discrimination jurisprudence recognizes both sorts of stereotyping identified in the psychological literature: empirical generalizations and normative assumptions about the proper roles of women.(15)

For example, the Court condemned a policy based on normative assumptions about the proper roles of women in Mississippi University for Women v. Hogan.(16) In Hogan, the Court invalidated a state nursing school's policy of excluding men from admission because the policy "reflect[ed] archaic and stereotypic notions" of the "proper roles of men and women."(17) The Court rejected the argument that the exclusion of men was necessary to compensate for discriminatory barriers faced by women, finding instead that the university's admission policy "perpetuate[d] the stereotyped view of nursing as an exclusively women's job."(18)

The Hogan Court noted that the nursing school's assumptions about the proper roles of women harmed the women who conformed to those assumptions by depressing the wages paid to nurses.(19) The Court also recognized the broader harms to women caused by stereotyping. It recognized that government policies based on stereotypes about women's proper roles are unjust--not only to women who do not fit the particular stereotype, but to all women--because they convert stereotypical assumptions about women's proper roles into reality, forcing women into constricted social roles. As Justice O'Connor explained, by excluding males from admission, the nursing school policy made the "assumption that nursing is a field for women a self-fulfilling prophecy."(20)

The link between empirical generalizations and normative assumptions about the proper roles of women is critical to understanding why the Court has found laws based on empirical generalizations about women to violate the Equal Protection Clause. Empirical generalizations occur frequently in legislation; indeed, as John Hart Ely has noted, such generalizations are an essential part of legislation.(21) The Equal Protection Clause, in most cases, does not prohibit the use of such generalizations in creating laws.(22) In the area of sex stereotyping, however, statutes based on inaccurate generalizations about the roles and abilities of men and women are unconstitutional because these generalizations perpetuate offensive normative assumptions about women's proper roles.(23)

For example, in Weinberger v. Wiesenfeld,(24) the Court invalidated a statute that provided to a widow and her children Social Security benefits based on the earnings of a deceased husband, but denied to the widower benefits based on the earnings of his deceased wife. The provision was invalid because it rested on the "overbroad generalization" that women, but not men, are dependent on the wages earned by their spouses.(25) Yet, as the facts of the Weinberger case show, women's wage-earning work can be absolutely vital to a family's efforts to live a decent life. By labeling wives as dependents and husbands as breadwinners, Congress perpetuated the stereotype of female dependency, reinforcing the notion that men, not women, should be the primary wage earners for a family.

Weinberger demonstrates the necessary connection between assumptions about what women are and assumptions about what women should be. Judgments about the traits possessed by women reinforce notions about what the proper roles of women should be, making stereotypical judgments about women's roles and abilities into self-fulfilling prophecies. Legislation that rests on such stereotypical notions about the proper roles of women is unconstitutional under the Equal Protection Clause because it "reinforce[s] . . . stereotypes about the group's competence or predispositions that have been used to prevent them from voting, participating on juries, pursuing their chosen professions, or otherwise contributing to civic life."(26) At the core of the prohibition on stereotyping, then, is the notion that state practices and policies based on stereotypes block women's choice of social roles, preventing them from fully taking part in American society. Such policies are inconsistent with the notion of equal citizenship at the core of the Equal Protection Clause.(27) This link between overbroad generalizations and women's roles explains why the Court's stereotyping analysis is not simply an across-the-board attack on the "inevitable stuff of legislation."(28)

The Supreme Court's sex discrimination jurisprudence, however, analyzes inaccurate and overbroad generalizations in terms of similarities between the sexes. The Court only invalidates legislation based on impermissible stereotyping when the stereotyping involves a failure to recognize similarities between men and women. For example, in Weinberger, by failing to recognize that both men and women could be the primary wage earners for a household, the statute provided "'dissimilar treatment for men and women who are . . . similarly situated. . . in violation of the Equal Protection Clause.(29) Under the Court's current doctrine, the "harm of stereotyping," Catharine MacKinnon has noted, is the assumption that "all women are the same and/or like some mythic feminine standard, and inherently and irredeemably different from men."(30)

This focus on sameness versus difference underlies the problems in the Supreme Court's understanding of stereotyping. Stereotyping is not simply reducible to a failure to recognize similarities between the sexes. Psychologists have defined stereotypes as a set of beliefs about a group's personal attributes--both personality traits and norms of expected behavior;(31) they have not focused on issues of sameness and difference. Moreover, psychologists have suggested that aspects of an "individual's physiological or biological identity" are often the stimuli for stereotypical judgments.(32) This is especially true in the area of sex and sex-role stereotyping, where stereotypes are generally based on "assumed or perceived sex differences.(33) Consequently, any stereotyping inquiry should not focus solely on the biological similarities or differences between men and women. Rather, courts should scrutinize statutes to see if they are based on generalizations about the roles and abilities of women and normative expectations about appropriate behavior for women.

The Supreme Court's sameness/difference framework allows the state to perpetuate outmoded notions about women's proper roles where men and women are different. Women's differences from men do not dictate their social roles. As Ann Freedman has explained, it is "social arrangements and not biology that give[] [sex differences] meaning. . . . [P]articular human characteristics have no inherent social significance, and no social arrangements concerning sex differences are `natural' rather than culturally determined.(34) Rather, society constructs women's roles precisely in terms of their differences from men.(35) The Court has never recognized this point because sex discrimination law is structured to avoid looking at stereotyping where there are categorical sex differences between men and women.(36)

II. STEREOTYPING AND THE STRUCTURE OF SEX DISCRIMINATION Law

A. The Structure of Stereotyping Analysis

Despite the centrality of stereotyping analysis to the Supreme Court's modern sex discrimination jurisprudence, the Court does not look for stereotyping in deciding whether to apply the heightened scrutiny standard of Craig v. Boren.(37) Instead, the Court looks for a sex-based classification;(38) it applies heightened scrutiny only if the challenged law divides those affected by the statute into two groups, one composed solely of men and the other solely of women. The Court asks whether a statute rests on stereotypes only after determining that a statute creates a sex-based distinction and only in evaluating whether the state interests are sufficient to justify a sex-discriminatory law. If either the state interests or the means used to achieve them reflect stereotypical assumptions about women's proper roles, the statute cannot pass constitutional muster.

We can see the structure of the Court's stereotyping analysis most clearly in Hogan. The first inquiry in any sex discrimination case brought under the Equal Protection Clause is whether the challenged policy "discriminates . . . on the basis of gender."(39) Writing for the Hogan Court, Justice O'Connor compared the position of the plaintiff (in this case a male) with that of a "similarly situated female,"(40) finding that the state nursing school's policy created a sex-based classification. The Court proceeded to ask whether the discriminatory policy served "`important governmental objectives'"(41) and whether the discriminatory means employed were "'substantially related to the achievement of those objectives.'"(42) In conducting this inquiry, the Court examined the interests the state actually sought to achieve and questioned whether they rested on stereotypes about women's proper roles.(43)

The Court first looked to see if the goals of the statute rested on normatively offensive assumptions about women's proper roles. As the Court explained, the Craig standard must be applied free of fixed notions concerning the roles and abilities of males and females. Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions. Thus, if the statutory objective is to exclude or "protect" …