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In this paper, I cover several topics. I will support MacKinnon’s ideas on gender equality, briefly summarize Crenshaw’s discussion of intersectionality, and provide an analysis of the court’s approach to gender in at least three cases. It will be my purpose to propose that each of these cases provide examples of gender bias that was remedied by the application of the Fourteenth Amendment. Further, I will use concepts advocated by MacKinnon and Crenshaw that support the use of the Fourteenth Amendment to reduce the burden of gender bias in our society.
MacKinnon states, “If the point of equality law is to end group-based dominance and subordination, rather than to recognize sameness or accommodate difference, a greater priority should be placed on rectifying the legal inequality of groups that are historically unequal in society, and less solicitude should be accorded pure legal artifacts or reversals of social fortune.”
In application of this principle, Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), is a case where the United States Supreme Court recognized sexual harassment as a violation of Title VII of the Civil Rights Act of 1964. The case was the first of its kind to reach the Supreme Court and would redefine sexual harassment in the workplace. It established the standards for analyzing whether conduct was unlawful and when an employer would be liable. The court, for the first time, made sexual harassment an illegal form of discrimination. A review revealed that the determination of what constitutes “severe or pervasive conduct” is invariably based on an examination of the totality of circumstances.
Turner v. Department of Employment Security, 423 U.S. 44 (1975), applied to a Utah statute making pregnant women ineligible for unemployment compensation for a period extending from 12 weeks before the expected date of childbirth until six weeks after childbirth. It was held violative of the Due Process Clause of the Fourteenth Amendment as incorporating a conclusive presumption that women are unable to work during the 18-week period because of pregnancy and childbirth, referring to Cleveland Board of Education v. LaFleur, 414 U. S. 632. The finding of the court states that employers must achieve legitimate state ends through more individualized means when basic human liberties are at stake.
Both cases applied to MacKinnon’s standard stating the desire to “…end group-based dominance and subordination, rather than to recognize sameness or accommodate difference,” and make it a “…greater priority … on rectifying the legal inequality of groups that are historically unequal in society.” Turner applied to MacKinnon’s standard of “…less solicitude is accorded pure legal artifacts,” and to a person’s “… reversals of social fortune,” based on pregnancy alone.
Crenshaw discussed the concept of intersectionality. Crenshaw states that neither Black liberationist politics nor feminist theory can ignore the intersectional experiences of those whom the movements claim as their respective constituents. In order to include Black women, both movements must distance themselves from earlier approaches in which experiences are relevant only when they are related to certain clearly identifiable causes. The praxis of both should be centered on the life chances and life situations of people who should be cared about without regard to the source of their difficulties.
Crenshaw argues that in order to reflect the Black community’s needs, one must include an analysis of sexism and patriarchy. As an example, the panel discussed the perception of the absent father in the black community. The panel describes a common stereotypical recommendation from those outside the community is that one should “marry older men or those with financial stability.” They argue greater opportunity and financial investment in the black community would solve many issues, as many younger black males must move about frequently to find employment. Turner described the loss of 18 weeks of employment, just because she was pregnant, as unnecessary and financially crushing. These are all examples used to define the influence of sexism and patriarchy applied to individuals lives.
Crenshaw further argues that Feminism must include an analysis of race if it hopes to express the aspirations of non-white women. One panel member described her experience with law enforcement when she had hands and feet shackled while in police custody and she felt she had been left in a cage. Another described the indifference of law enforcement upon the accidental shooting death of her child. Another described how she was separated from her young children while incarcerated and felt that the children were left unsupervised with no direction from family. The panel members felt that these biases were not inflicted upon other races of the population in great numbers. The Vinson case determined that sexual harassment was multifaceted and variable. The court found that harassment could be implicit and explicit, with numerous layers of activities that should be analyzed when determining culpability. These examples were used as evidence of how systemic harassment influenced the lives of those described.
Rawls argues that groups who work on legislation and judiciaries use a hypothetical scenario in which they task themselves with trying to reach an economic or political structure for society. He argues that a “veil of ignorance” exists concerning their own lack of knowledge of how their particular bias effects a just outcome for others. Edelman argues that organizations adopt a variety of compliance structures in response, that are more symbolic than substantive.
In Taylor v. Louisiana, 419 U.S. 522 (1975), the court ruled that juries could not exclude women from the jury pool. In this case, 53% of the available population were women and none were selected for the jury pool. This had both legislative and constitutional issues involved. The court ruled that women should be available for the pool based on the Fourteenth Amendment. Edelman’s perspective plays in to the fact that there is a structure for selection involved, while excluding almost half the population from jury pool, inserting bias into the system.
In Kirchberg v. Feenstra, 450 US 455 (1981), by law, a mortgage placed on a house to pay legal fees did not have to be discussed with anyone but the male of the household. Joan Feenstra filed a lawsuit arguing that Louisiana’s laws giving sole control of marital property to the husband were unconstitutional. The court held that Louisiana’s law lacked an “exceedingly persuasive justification” for its sex-based classification, and therefore was in violation of the Equal Protection Clause of the Fourteenth Amendment. Rawls “veil of ignorance” plays a crucial role in the legislation and also in the violation of the Fourteenth Amendment. Mills argues that the most marked cases of injustice, and those which give the tone to the feeling of repugnance which characterizes the sentiment, are “… wrongful exercise of power over some one,” or the next are those which consist in “wrongfully withholding from him something which is his due; in both cases, inflicting on him a positive hurt, either in the form of direct suffering, or of the privation of some good which he had reasonable ground, either of a physical or of a social kind, for counting upon.” In this case, the wrongful exercise of power due to gender bias created an injustice and would violate Mills perspective.
Craig v. Boren, 429 U.S. 190 (1976), was the first case in which a majority of the United States Supreme Court determined that statutory or administrative sex classifications were subject to intermediate scrutiny under the Fourteenth Amendment’s Equal Protection Clause. The Supreme Court was called upon to determine whether a statute that denied the sale of beer to individuals of the same age based on their gender violated the Equal Protection Clause. The Court held that the gender classifications made by the Oklahoma statute were unconstitutional because the statistics relied on by the state were insufficient to show a substantial relationship between the statute and the benefits intended to stem from it. Mills concept of “privatization of goods” applies to this case.
The Fourteenth Amendment provides in part that no state shall “deprive any person of life, liberty or property without due process of law.” This same Amendment also provides that no state shall “deny to any person within its jurisdiction the equal protection of the law.”
The concept of a rational basis review, the rules of Intermediate Scrutiny or the rules of Strict Scrutiny are important. Rational basis only requires that the challenged classification promotes a legitimate state interest to be constitutional, and that the burden is up to the party challenging the legislation to overcome a strong presumption that the classification is valid. Strict scrutiny is the highest standard of review which a court will use to evaluate the constitutionality of governmental discrimination. The disregard of gender in Taylor, Kirchberg and Craig were found to be invalid under these rules.
The Fourteenth Amendment to the Constitution provides the protection of fair procedure for the defendant to guarantee equal legal treatment. Concepts of justice described by MacKinnon and Crenshaw apply to the cases discussed in this paper. The Constitution has the utilities to protect the population from gender bias. Used consistently, it can lead to a more just existence for all.
- Craig v. Boren, 429 U.S. 190 (1976)
- Cleveland Board of Education v. LaFleur, 414 U. S. 632
- Crenshaw, Demarginalizing the Intersections of Race and Sex.pdf
- Edelman, Legal Discrimination.pdf
- Estrich, Rape, Force & Consent. pdf
- Kirchberg v. Feenstra, 450 US 455 (1981),
- Mill, On the Connection Between Justice and Utility.docx
- MacKinnon, Reflections on Sex Equality.pdf
- Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)
- Panel Discussion: Gender, Race, and Incarceration. https://www.c-span. org/video/?316078-1/gender-incarceration
- Rawls, A Theory of Justice.pdf
- Taylor v. Louisiana, 419 U.S. 522 (1975)
- Turner v. Department of Employment Security, 423 U.S. 44 (1975)
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