Kimberly Yuracko

The New Gender Essentialism

Kimberly A. Yuracko — Mon, 29 Aug 2011 12:58:04 PDT

In the 19th and early 20th Century women were often excluded from jobs and opportunities because of their sex. Sex, it was thought, defined individuals’ abilities and interests in ways that rendered women fit for certain tasks and unfit for many others. Fortunately, such sexual essentialism has been repudiated by courts. No longer, for example, may employers make assumptions about how women must or should behave because of their sex. Nonetheless, I contend that the sexual essentialism of the past is being replaced by a new form of gender essentialism whereby courts not only permit but in fact enforce dichotomous and socially loaded conceptions of gender. Perhaps surprisingly, the seeds of this new essentialism are being sown in a recent wave of cases providing sex discrimination protection to transsexuals. While these cases are most often heralded as progressive and expansive, I argue that in fact the cases are highly reactionary. They rely upon and necessarily promote essentialized conceptions of masculinity and femininity that threaten to define and constrain the options available to women and men, transsexual and nontranssexual, alike. Indeed, I contend that the new essentialism, while more subtle than the old, is similarly pernicious.

The Antidiscrimination Paradox: Why Sex Before Race?

Kimberly A. Yuracko — Mon, 30 Mar 2009 12:37:45 PDT

This paper seeks to explain a paradox: Why does Title VII’s prohibition on sex discrimination currently look so much more expansive than its prohibition on race discrimination? Why in particular, do workers appear to be receiving greater protection for expressions of gender identity than for expressions of racial identity? I argue that as a doctrinal matter, the paradox is illusory—the product of a fundamental misinterpretation of recent sex discrimination case law by scholars. Rather than reflecting fundamentally distinct antidiscrimination principles, the race and sex cases in fact reflect the same traditional commitments to ending status discrimination and undermining group-based subordination. Nonetheless, as a practical matter, the paradox is real. Courts are more likely to protect workplace expressions of gender identity than racial identity. The divergence, I contend, flows not from law, but from culture--in particular society’s ongoing commitment to racial transcendence and gender essentialism.

Illiberal Education: Constitutional Constraints on Homeschooling

Kimberly Alexandra Yuracko — Tue, 03 Apr 2007 12:02:57 PDT

Homeschooling in America is no longer a fringe phenomenon. Estimates indicate that well over a million children are currently being homeschooled. Although homeschoolers are a diverse group, the homeschooling movement has come to be defined and dominated by its fundamentalist Christian majority many of whom choose to homeschool in order to shield their children from secular influences and liberal values. In response to political pressure from this group states are increasingly abdicating control and oversight over homeschooling. Modern day homeschooling raises then in stark form questions about the obligations that states have toward children being raised in illiberal subgroups. Surprisingly, the legal and philosophical issues raised by homeschooling have been almost entirely ignored by scholars. This paper seeks to begin to fill this void by making a novel constitutional argument. The paper relies on federal state action doctrine and state constitution education clauses to argue that states must—not may or should—regulate homeschooling to ensure that parents provide their children with a basic minimum education and check rampant forms of sexism. This paper argues, in other words, that while there is an upper limit on how much states can constitutionally regulate and control children’s education, there is a lower limit as well. There is a minimum level of regulation and oversight over children’s education that states may not with constitutional impunity avoid.