The tensions between the two in the hopes of building on sex equality’sĮxisting strengths and of actualizing its untapped potential. It is this Feature’s objective to surface In each scenario above is sex equality’s doctrine of real differences. Recognizes that trans men can be legal males without removing their “female Physiologically distinct “female breasts,” 5 but a kindred doctrine Tolerates female-only criminal topless bans on the ground that women have Sexual-orientation discrimination in federal immigration law on the ground that Tolerates sex discrimination in federal immigration law on the ground thatĬhildren cannot be born of men, 3 but a kindred doctrine rejects Recognizes that men can get pregnant 2 -and, by implication, have abortions. Tolerates criminal abortion laws on the ground that only women have Landed on their desks through their excellent suggestions and edits. The Yale Law Journal’sĮditorial team has made this Feature a much better product than when it first Versions of this Feature were presented, and to the participants at Vanderbilt University Law School, and the University of Connecticut School of Law, where University of California, Irvine School of Law, the George Washington Helping me think through many of the ideas expressed in this Feature and for
Many thanks to Avlana Eisenberg, Germaine Gurr, Douglas NeJaime, and Marc Spindelman for Those stereotypes easier to see, harder to ignore, and impossible to justify.Ĭalifornia, Irvine, School of Law. It is just that now, LGBTQ equality makes Biologically rationalized sex distinctions Say about biology and its role in lawmaking and imagines what the American law It urges sex equality to grapple with what LGBTQ equality has to Unsettle sex equality’s beliefs in the reality of biological differencesīetween the sexes and in the legality of laws based on thoseĭifferences. LGBTQ equality surrounding sex, the body, procreation, and parenthood to Not survive what LGBTQ equality shows: that biologically rationalized sexĭiscrimination is an illegal sex stereotype. This Feature argues that sex equality’s continued embrace of real differences should The result is a broad swath of laws across substantive areas-including family law, tort, immigration law, criminal law, property, and abortion law-that sustain sex inequality courtesy of biology and despite a fairly robust anti-stereotyping principle. Biological rationales for sex discrimination remain attractive to lower federal and state courts, and have received the Supreme Court’s blessing, most recently in Dobbs v. This is so because sex equality insists that biology alone is neither a stereotype nor an expression of bigotry. But biological justifications for sex discrimination persist. Biological justifications for race discrimination-once common-have been relegated to the trash heap of history. Sex equality rejects sex discrimination when it is based on sex stereotypes, defined as gross generalizations about women and men, but not when it is based on biological differences between the sexes, like pregnancy, anatomy, and strength. This Feature uses recent developments in LGBTQ-equality law to unsettle sex equality’s enduring commitment to biology as a basis for sex discrimination.
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