Stereotyping and Difference: The Future of Sex Discrimination Law

Article excerpt

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. …