Struck by Stereotype: Ruth Bader Ginsburg on Pregnancy Discrimination as Sex Discrimination
Siegel, Neil S., Siegel, Reva B., Duke Law Journal
It was always recognition that one thing that conspicuously distinguishes women from men is that only women become pregnant; and if you subject a woman to disadvantageous treatment on the basis of her pregnant status, which was what was happening to Captain Struck, you would be denying her equal treatment under the law. (1)
This is an attempt at recovery. This Essay hopes to call attention to then-Professor Ruth Bader Ginsburg's 1972 merits brief (2) in Struck v. Secretary of Defense. (3) The brief has been underappreciated in part because the Supreme Court of the United States eventually declined to decide the case. (4) But anyone seeking to understand the origins and nature of Justice Ginsburg's views on sex discrimination would be well advised to read this brief. So would anyone interested in reimagining the bounds of constitutional possibility in the realm of gender equality.
In her capacity as general counsel for the Women's Rights Project of the American Civil Liberties Union, Ginsburg filed the Struck brief a little more than a year after the Court decided Reed v. Reed, (5) but before the Court began to give shape to liberty and equality doctrine concerning the regulation of pregnant women in cases such as Roe v. Wade, (6) Frontiero v. Richardson, (7) and Geduldig v. Aiello. (8) Ginsburg wrote the brief on behalf of an Air Force officer, Captain Susan Struck, whose pregnancy--and whose refusal on religious grounds to have an abortion (9)--subjected her to automatic discharge from military service. (10)
The brief demonstrates that, from the very beginning, Justice Ginsburg has conceived discrimination against pregnant women as a core case of sex discrimination. In 1972, Ginsburg understood pregnancy discrimination as sex discrimination because she has long viewed laws enforcing sex roles of the separate spheres tradition as compromising the "equal citizenship stature" of women. (11)
In Struck, Ginsburg argued that excluding a pregnant woman from the Air Force when men otherwise similarly situated in their capacity or incapacity to work are provided sick leave is a core case of sex discrimination because the distinction "reflects arbitrary notions of woman's place wholly at odds with contemporary legislative and judicial recognition that individual potential must not be restrained, nor equal opportunity limited, by law-sanctioned stereotypical prejudgments." (12) The brief opened by emphasizing that laws imposing traditional sex roles on pregnant women deny individuals equal opportunity and perpetuate the secondary social status of women:
Heading the list of arbitrary barriers that have plagued women seeking equal opportunity is disadvantaged treatment based on their unique childbearing function. Until very recent years, jurists have regarded any discrimination in the treatment of pregnant women and mothers as "benignly in their favor." But in fact, restrictive rules, and particularly discharge for pregnancy rules, operate as "built-in headwinds" that drastically curtail women's opportunities. Decisions of this Court that span a century have contributed to this anomaly: presumably well-meaning exaltation of woman's unique role in bearing children has, in effect, restrained women from developing their individual talents and capacities and has impelled them to accept a dependent, subordinate status in society. (13)
Ginsburg thus argued that traditions of regulating women during pregnancy are not in fact benign but instead play a key role in imposing on women "subordinate" social status.
As this Essay shows, Ginsburg's equal protection argument in Struck anticipates views that she would subsequently express on the bench (14)--including her account of intermediate scrutiny for the Court in United States v. Virginia, (15) which requires the judiciary closely to examine laws that classify on the basis of sex but allows government to differentiate between men and women so long as "such classifications [are] not . …