The failure of gender equality: an essay in constitutional dissonance
Originally published in Buffalo Law Review, Vol. 36, No. 3, pp. 573-644, Fall 1987.
Feminists agree that gender equality remains elusive; they disagree about why. A critical question is whether gender equality can be accomplished by treating men and women interchangeably. Stated another way, the debate has been between those who deny that women need "special treatment" in order to achieve equality, and those who argue that "real" equality demands that the legal system recognize the unique role which women play in society. Each side of this similar treatment/special treatment debate has assumed that the correct doctrinal formulation of equality will lead to some form of "true equality."
This article will examine and critique the ways in which legal notions of discrimination and rights make demands for gender equality appear dissonant and even unjust. We begin by reviewing the similar treatment/different treatment debate, and the caselaw that has influenced it. After briefly discussing some of the values underlying true gender equality, we examine how discrimination law fails to provide a means for achieving such equality. In so doing, we explore the innate limitations of discrimination law, and then observe those same limitations operating at a more basic level in the very notion of constitutional rights. We conclude by discussing how current forms of legal reasoning prevent equality, and how a change in methodology hold forth some promise for reducing gender inequality.
Buffalo Law Review, Vol. 36, No. 3, pp. 573-644, Fall 1987.