America has long prided itself on being a nation of mobility. A nation where if you just work hard enough, you can and will get ahead.1 Indeed, many Americans hold this Horatio Algeresque self-image dear,2 and public policy is often formed based on the idea that work is the ticket to upward economic mobility.3 How mothers, and particularly poor single mothers, fit into this legend has evolved over time. For many years, there was an exception to the emphasis on work for woman who were raising young children. Indeed, when the first cash welfare program was created in 1935 (as Aid to Dependent Children (ADC)), it was sold as a federal solution to allow poor single mothers to take care of their children full-time, rather than feel pressured to work.4 Before this federal program, charities and then states ran Mothers’ Pension programs that were designed to help these mothers so that they could raise their children.5 Over time, however, a confluence of factors involving race, class, and a changing economy meant that support for ADC (later renamed Aid to Dependent
id=3290590. Lamp thanks Professor Jennifer Hillman for making this point to him, and I similarly want to her highlight her contribution.
Twenty-five years ago, it was my privilege to inaugurate the Duke Journal of Gender Law & Policy with an Essay that outlined the major theoretical frameworks within which gender law scholarship was evolving.1 These frameworks draw content from numerous traditional subject matter fields—family law, employment discrimination law, criminal law, and constitutional law, to name a few. But they also transcend those traditional fields, comprising a distinct field of study focused on the different ways gender does, or should, matter to law.2 Two of the frameworks use equality as the central goal and organizing principle, but make different assumptions and draw different conclusions about how to achieve it. Formal equality, for its part, assumes that men and women are the same, for all relevant purposes, and thus that laws and practices should not make distinctions between them. Substantive equality, on the other hand, focuses on factors that negatively affect women, such as past discrimination and biological differences from men, and supports accommodations and remedial measures to eliminate these negative effects. Two other frameworks also have concerns for equality, but offer critiques or proposals that do not focus exclusively on whether men and women should be treated the same, or differently. Nonsubordination theory makes the imbalance in power between men and women the central feature of its analysis, and explains how ostensibly freely-chosen sex roles and seemingly neutral legal principles (such as personal autonomy and freedom of speech) operate to subordinate women to men. Difference theory, like substantive equality, draws attention to women’s differences, but sees those differences not simply as impediments to women’s success, but also, in some cases, as a superior model for societal improvement. In 1994, I also described a collection of critical perspectives that I referred to as postmodern feminism. These perspectives
Title IX expresses society’s commitment to sex equality in educational settings. The structure of the statute’s regulatory scheme makes clear that the goal is sex equality, not sex neutrality. Notwithstanding the general preference for sex neutral measures, the sports exception to Title IX’s general nondiscrimination rule has long been one of the statute’s most popular features. The challenge in the beginning of the Title IX era was to get educational institutions to conceive of and equally to support females as athletes. We continue to fight for equal support, but as Title IX concludes its first semi-centennial, we no longer struggle as we did in the beginning with the basic concept of females as athletes, or of female sport as a high value social good. The challenge as we move into Title IX’s second semi-centennial is to get institutions to address the remaining disparities in their treatment of female athletes and female sport at the same time as we enter a new era in which we are being asked to imagine that “female” includes individuals of both sexes so long as they identify as women and girls. This ask reflects the intellectual choice to conceive of sex as a social construct rather than as a fact of biology tied to reproduction, and also the strategic choice of trans rights advocates to work toward law reform that would disallow any distinctions on the basis of sex. The problem is that female sport is by design and for good reasons a reproductive sex classification. These reasons have nothing to do with transphobia and everything to do with the performance gap that emerges from the onset of male puberty. Whether one is trans or not, if one is in sport and cares about sex equality, this physical phenomenon is undeniably relevant. Changing how we define “female” so that it includes individuals of both sexes, and then disallowing any distinctions among them on the basis of sex, is by definition and in effect a rejection of Title IX’s equality goals. Those who push for these changes are committed to sex neutrality, not sex equality. The goals of this paper are to provide the legal, factual, and normative background necessary to evaluate the merits of this challenge to the sports exception to Title IX’s general nondiscrimination rule, and then to present the case for re-affirming the exception in a form that is appropriate for this next period of its history. It proceeds in three parts: Part I describes the legal history of Title IX’s sports exception, its goals, and the current state of the legal doctrine. Part II explains its scientific basis and rationale. Part III sets out the best case for and against affirming the commitment to sex equality in education-based sport, and then presents our argument for resolving the collision of interests at issue. The paper concludes that the original Title IX commitment to sex equality continues to do important work and should not to be abandoned, including in the sports space where equality requires not only recognizing but also celebrating physical sex differences. Including trans people within this design is difficult by definition, but policymakers should accept the challenge.
Does the Constitution mandate forcing women to serve in the combat roles against their will? Does it require drafting women for that role even if Congress determines that the main purpose is to furnish troops for ground combat, and data shows that relatively few women are physically suited for that particular task? Does the Constitution require the government—in the midst of a national emergency requiring the mass mobilization of combat troops—to draft women despite evidence showing the necessary combat arms force can much more rapidly and efficiently be obtained through a male-only draft? These are the questions with which this brief Essay will grapple. Importantly, this Essay does not question whether or not women who can qualify for ground combat should be entitled to volunteer; that is, self-select into such positions. Rather, it only addresses whether a conscription process must be aimed at producing equal numbers of men and women in combat units that specifically require a level of physicality that only a small percentage of women possess. That said, this Essay also argues that if it is necessary to draft persons for positions for which the data does not demonstrate that women as a group face a particular physical impediment, then the draft must be conducted on a genderneutral basis. It also contends that it would be wiser policy for Congress to extend draft registration to both genders in order to be prepared to fill the many other positions beyond ground combat that future warfare will likely require.
