Supreme Court Review

Article Title

Biological Warfare: Constitutional Conflict over “Inherent Differences” between the Sexes


Constitutional sex discrimination law grew out of constitutional race discrimination law and in many ways takes after it. But there are some critical distinctions between the two areas of law, and the most significant involves the Supreme Court’s attitude toward biological difference. The Court has explained that once upon a time—indeed not so very long ago—Americans believed there were significant biological differences among the races.The law now recognizes those allegedly biological differences as social constructs: pseudo-scientific assertions about the implications of skin color that masked and legitimated cultural biases and sustained racial hierarchy. As a result, “[s]upposed ‘inherent differences’ between the races are no longer accepted as a ground for discrimination." The Court tells a different story about sex. Where sex is concerned, the Court asserts, it is not pseudo-science all the way down. Unlike the supposed differences between, say, black and white people, “[p]hysical differences between men and women … are enduring.” Thus, the Court has explained, the law may be more receptive to sex-based state action predicated on “inherent differences” than it is toward race-based state action predicated on those grounds. Of course, that does not mean the state has carte blanche to discriminate on the basis of sex. Inherent differences between the sexes may sometimes justify the use of sex classifications, but such classifications may not be used today, as they once were, to constrain opportunity, to reinforce traditional sex and family roles, or “to create or perpetuate the legal, social, and economic inferiority of women."

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