Doriane Lambelet Coleman (Duke University School of Law) has posted Sex Neutrality (Law and Contemporary Problems, Vol. 85, No. 1, 2022) on SSRN. Here is the abstract:
This article closes out the volume on Sex in Law in which it appears with reflections on the normative question whether it would be best on balance if the law were to evolve to be sex neutral. Specifically, it considers whether—as some observers and policymakers have suggested—we would be better off if law could not see or act on the basis of sex, and if it prohibited regulated institutions from doing the same. Arguably, this move is the next logical step in the evolution of law’s treatment of sex from its historical use as a basis for ordering society according to the state’s general police powers to its increasingly limited modern use by both the states and the federal government as a basis for addressing discrimination and the differences that continue to stand in the way of sex equality.
The question whether—the biology and ubiquity of the taxonomy notwithstanding—the law should be sex neutral is both current and recurring. That is, we are pressed to consider it today by some of the same groups that have posed it in the past, including those that take one or more of these positions: Law that demands equality should express equality. The best way for the law to contribute to the dismantling of structural “isms”—including sexism—is by forcing neutrality. All forms of group-based affirmative action are inherently unjust. Gender minorities but also females are likely to fare better in the long run if sex is removed from any calculus that yields social goods. Unusual political bedfellows are the norm here, even as related questions about how sex is defined and what sexism is still fair game are front and center in the culture wars. As a result, the debates are more significant and disruptive than they were in earlier periods, an indicator of the kind of great social upheaval that tends to make for the development of new law in the Anglo-American tradition.
This article briefly summarizes the history of sex in law (Structural Sexism) and the reforms of the nineteenth and twentieth centuries (Sex Skepticism) before turning to the current moment in which these debates are taking place (Sex Neutrality). In this context, it describes and then counters the arguments in favor of sex neutrality on the grounds that sex is real, it is significant for individuals and the society in ways that matter to good governance, and it is precisely the law’s role to take such taxonomies into account in the fulfillment of its institutional mission. The article concludes with an effort to settle the terms on which disparately motivated groups might agree to pursue commonly held objectives.
Recommended.