Unpacking package deals: Separate spheres are not the answer

Denver University Law Review

Volumn 75, Issue 4, 1998, Pages 1305-1320

  Case, Mary Anne ^a  

^a NONE

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EID: 0041310671     PISSN: 08839409     EISSN: None     Source Type: Journal    
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References (84)

1. Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 YALE L.J. 1 (1995); Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of "Sex," "Gender," and "Sexual Orientation" in Euro-American Law and Society, 83 CAL. L. REV. 1 (1995). A third major article on a similar subject appeared at about the same time. See Katherine Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. PA. L. REV. 1 (1995). In a sense, Valdes, Franke, and I each centered on a different apex of the triangle formed by sex, gender, and orientation. Valdes, who seeks to break down the conflation between the three as a step toward queer legal theory, takes sexual orientation as his apex. Franke seeks to break down the category of sex and I concentrate on gender. Although each of us concerns him or herself with numerous aspects of what Valdes calls the conflation of sex, gender, and orientation, my focus is the genderbender, Valdes's the homosexual, and Franke's the transsexual.
2. Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 YALE L.J. 1 (1995); Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of "Sex," "Gender," and "Sexual Orientation" in Euro-American Law and Society, 83 CAL. L. REV. 1 (1995). A third major article on a similar subject appeared at about the same time. See Katherine Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. PA. L. REV. 1 (1995). In a sense, Valdes, Franke, and I each centered on a different apex of the triangle formed by sex, gender, and orientation. Valdes, who seeks to break down the conflation between the three as a step toward queer legal theory, takes sexual orientation as his apex. Franke seeks to break down the category of sex and I concentrate on gender. Although each of us concerns him or herself with numerous aspects of what Valdes calls the conflation of sex, gender, and orientation, my focus is the genderbender, Valdes's the homosexual, and Franke's the transsexual.
3. Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 YALE L.J. 1 (1995); Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of "Sex," "Gender," and "Sexual Orientation" in Euro-American Law and Society, 83 CAL. L. REV. 1 (1995). A third major article on a similar subject appeared at about the same time. See Katherine Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. PA. L. REV. 1 (1995). In a sense, Valdes, Franke, and I each centered on a different apex of the triangle formed by sex, gender, and orientation. Valdes, who seeks to break down the conflation between the three as a step toward queer legal theory, takes sexual orientation as his apex. Franke seeks to break down the category of sex and I concentrate on gender. Although each of us concerns him or herself with numerous aspects of what Valdes calls the conflation of sex, gender, and orientation, my focus is the genderbender, Valdes's the homosexual, and Franke's the transsexual.
4. This term is not my own; I take it from the title of the Symposium.
5. Valdes, supra note 1, at 210.
6. These two aspects of the system not only are central to Valdes's analysis, but also have been described by scholars as the "minimal conditions" for the presence of multiple genders in the Native American tradition. See Will Roscoe, How to Become a Berdache, in THIRD SEX, THIRD GENDER: BEYOND SEXUAL DIMORPHISM IN CULTURE AND HISTORY 371 (Gelbert Herdt ed., 1994).
7. The objections I have to the Native American model are not quibbles about its implementation, but fundamental difficulties with its premises even when well and fully realized. I do not, therefore, propose to contest as an empirical matter whether in any particular Native American culture the spheres assigned to the sexes really were equal or whether crossing into the sphere associated with the other sex was easier for men than for women. A vast anthropological literature already debates the question whether there have ever been societies in which the sexes enjoy equal status. For a review of this literature, see SHERRY B. ORTNER, MAKING GENDER: THE POLITICS AND EROTICS OF CULTURE 139-80 (1996). For purposes of my analysis, I will assume a society along these lines is possible and ask whether it would be desirable.
8. Valdes, supra note 1, at 212-13 (footnote omitted) (quoting WILL ROSCOE, THE ZUNI MAN-WONWN 18 (1991)).
9. Id. at 212. A good illustration of the way this presumption worked itself out may be the Greek myth of Achilles's failed attempt at draft-dodging. In order to escape his being sent to a war in which it was predicted he would die, Achilles's mother disguised him in women's clothes and hid him among the women. To catch him out, the Greeks brought gifts to the group of girls among whom Achilles was hiding. While all the others selected beads and trinkets, Achilles alone chose a sword, thereby revealing his masculine gender. In Native American terms, Achilles, by choosing the bow and not the burden strap, has indicated his masculine gender. See Harriet Whitehead, The Bow and the Burden Strap: A New Look at Institutional Homosexuality in Native North America, in SEXUAL MEANINGS: THE CULTURAL CONSTRUCTION OF GENDER AND SEXUALITY 80, 87 (Sherry B. Ortner & Harriet Whitehead eds., 1982).
10. See Valdes, supra note 1, at 224-25. There is much dispute among historians and other scholars of the Native American sex/gender system about the exact parameters of berdache. Areas of disagreement (and perhaps of tribal variation) include the extent to which a berdache was seen as a "third gender" rather than as someone who had crossed all the way from one gender to the other, whether women had opportunities comparable to men to become berdache, and whether bisexuality and other liminal behavior was an option for berdache. See id. at 226, 232-33. For purposes of this article, these disputes, though interesting and relevant, do not need to be resolved.
11. Again, I mean my discussion of berdache-like elements in these communities to be compared primarily with Valdes's ideal of berdache, rather than with the actual practices of berdache in any particular Native American community.
12. I wish there were a similarly extensive body of sociological and historical scholarship here as there is on the Native American berdache tradition. Unfortunately, in its absence, I have had to rely more than I would have wished to on anecdote and speculation.
13. See Case, supra note 1, at 50 n. 166.
14. Smith v. Liberty Mut. Ins. Co., 569 F.2d 325, 329 (5th Cir. 1978).
15. Richard Leiby, Clothed in Controversy; He's a 16-Year Old Gay Transvestite. Somehow, Anthony Slater Has Made Life Work, WASH. POST, Sept. 7, 1994, at C1.
16. Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989).
17. Dillon v. Frank, No. 90-2290, 1992 WL 5436, at *5, *10 (6th Cir. Jan. 15, 1992).
18. Watkins v. United States Army, 875 F.2d 699, 701-02, 711 (9th Cir. 1989).
19. See, e.g., LEON E. PETTIWAY, HONEY, HONEY, MISS THANG: BEING BLACK, GAY, AND ON THE STREETS at xxxiv-xxxv (1996). Reporting of the black drag queens who are the subject of his book, Pettiway writes: They portray their mothers as matriarchs like those who have so often been depicted ruling their nests in sitcoms as well as the academic press . . . . [M]others are resourceful providers who are strong and determined, and who are the first lines of defense from both internal and external threats to their children's emotional and physical well-being. Therefore, in comparison to men, women are good. Id. Consider also the subculture of (male or transgender) participants in competitive drag/voguing depicted in the documentary Paris Is Burning, who organize themselves into groups called "houses" whose leaders are called "mothers." PARIS IS BURNING (Miramax 1991). Filmmaker Jenny Livingston interviewed the mothers of two of the most successful houses. Although both were viewed as successful leaders (whether measured by number of followers attracted, satisfaction of the followers, competitive success of the members of the house, or general prestige), both also differed markedly in approach in ways that social scientists (although apparently not the two mothers themselves) would view as sharply gendered. One described the role of a "mother" as leading the house into battle, being tough, strong, and competitive; the other spoke of a "mother's" role as comforter and nurturer of the members of the house. Id. (Again, remember that both mothers are genetic males flourishing in a subculture that glories in their effeminacy). Not only is strong leadership potential here identified with a female role, the voguing subculture also demonstrates that both stereotypically masculine qualities and stereotypically feminine qualities can be seen by a successful leader as the key to success. As the work of a white lesbian depicting the lives of gay men of color, Livingston's film has generated much critical commentary. See, e.g., JUDITH BUTLER, BODIES THAT MATTER: ON THE DISCURSIVE LIMITS OF "SEX" 121-40 (1993); BELL HOOKS, REEL TO REAL: RACE, CLASS, AND SEX AT THE MOVIES 214-26 (1996); JACQUELINE ZITA, BODY TALK: PHILOSOPHICAL REFLECTIONS ON SEX AND GENDER 182-201 (1998); Jackie Goldsby, Queens of Language: Paris Is Burning, in QUEER LOOKS: PERSPECTIVES ON LESBIAN AND GAY FILM AND VIDEO 108-15 (Martha Gever et al. eds., 1993). Of course, in writing this article, I run some of the same risks as Livingston, but I can see no way to avoid these risks short of avoiding the subject entirely.
20. See, e.g., LEON E. PETTIWAY, HONEY, HONEY, MISS THANG: BEING BLACK, GAY, AND ON THE STREETS at xxxiv-xxxv (1996). Reporting of the black drag queens who are the subject of his book, Pettiway writes: They portray their mothers as matriarchs like those who have so often been depicted ruling their nests in sitcoms as well as the academic press . . . . [M]others are resourceful providers who are strong and determined, and who are the first lines of defense from both internal and external threats to their children's emotional and physical well-being. Therefore, in comparison to men, women are good. Id. Consider also the subculture of (male or transgender) participants in competitive drag/voguing depicted in the documentary Paris Is Burning, who organize themselves into groups called "houses" whose leaders are called "mothers." PARIS IS BURNING (Miramax 1991). Filmmaker Jenny Livingston interviewed the mothers of two of the most successful houses. Although both were viewed as successful leaders (whether measured by number of followers attracted, satisfaction of the followers, competitive success of the members of the house, or general prestige), both also differed markedly in approach in ways that social scientists (although apparently not the two mothers themselves) would view as sharply gendered. One described the role of a "mother" as leading the house into battle, being tough, strong, and competitive; the other spoke of a "mother's" role as comforter and nurturer of the members of the house. Id. (Again, remember that both mothers are genetic males flourishing in a subculture that glories in their effeminacy). Not only is strong leadership potential here identified with a female role, the voguing subculture also demonstrates that both stereotypically masculine qualities and stereotypically feminine qualities can be seen by a successful leader as the key to success. As the work of a white lesbian depicting the lives of gay men of color, Livingston's film has generated much critical commentary. See, e.g., JUDITH BUTLER, BODIES THAT MATTER: ON THE DISCURSIVE LIMITS OF "SEX" 121-40 (1993); BELL HOOKS, REEL TO REAL: RACE, CLASS, AND SEX AT THE MOVIES 214-26 (1996); JACQUELINE ZITA, BODY TALK: PHILOSOPHICAL REFLECTIONS ON SEX AND GENDER 182-201 (1998); Jackie Goldsby, Queens of Language: Paris Is Burning, in QUEER LOOKS: PERSPECTIVES ON LESBIAN AND GAY FILM AND VIDEO 108-15 (Martha Gever et al. eds., 1993). Of course, in writing this article, I run some of the same risks as Livingston, but I can see no way to avoid these risks short of avoiding the subject entirely.
21. See, e.g., LEON E. PETTIWAY, HONEY, HONEY, MISS THANG: BEING BLACK, GAY, AND ON THE STREETS at xxxiv-xxxv (1996). Reporting of the black drag queens who are the subject of his book, Pettiway writes: They portray their mothers as matriarchs like those who have so often been depicted ruling their nests in sitcoms as well as the academic press . . . . [M]others are resourceful providers who are strong and determined, and who are the first lines of defense from both internal and external threats to their children's emotional and physical well-being. Therefore, in comparison to men, women are good. Id. Consider also the subculture of (male or transgender) participants in competitive drag/voguing depicted in the documentary Paris Is Burning, who organize themselves into groups called "houses" whose leaders are called "mothers." PARIS IS BURNING (Miramax 1991). Filmmaker Jenny Livingston interviewed the mothers of two of the most successful houses. Although both were viewed as successful leaders (whether measured by number of followers attracted, satisfaction of the followers, competitive success of the members of the house, or general prestige), both also differed markedly in approach in ways that social scientists (although apparently not the two mothers themselves) would view as sharply gendered. One described the role of a "mother" as leading the house into battle, being tough, strong, and competitive; the other spoke of a "mother's" role as comforter and nurturer of the members of the house. Id. (Again, remember that both mothers are genetic males flourishing in a subculture that glories in their effeminacy). Not only is strong leadership potential here identified with a female role, the voguing subculture also demonstrates that both stereotypically masculine qualities and stereotypically feminine qualities can be seen by a successful leader as the key to success. As the work of a white lesbian depicting the lives of gay men of color, Livingston's film has generated much critical commentary. See, e.g., JUDITH BUTLER, BODIES THAT MATTER: ON THE DISCURSIVE LIMITS OF "SEX" 121-40 (1993); BELL HOOKS, REEL TO REAL: RACE, CLASS, AND SEX AT THE MOVIES 214-26 (1996); JACQUELINE ZITA, BODY TALK: PHILOSOPHICAL REFLECTIONS ON SEX AND GENDER 182-201 (1998); Jackie Goldsby, Queens of Language: Paris Is Burning, in QUEER LOOKS: PERSPECTIVES ON LESBIAN AND GAY FILM AND VIDEO 108-15 (Martha Gever et al. eds., 1993). Of course, in writing this article, I run some of the same risks as Livingston, but I can see no way to avoid these risks short of avoiding the subject entirely.
22. See, e.g., LEON E. PETTIWAY, HONEY, HONEY, MISS THANG: BEING BLACK, GAY, AND ON THE STREETS at xxxiv-xxxv (1996). Reporting of the black drag queens who are the subject of his book, Pettiway writes: They portray their mothers as matriarchs like those who have so often been depicted ruling their nests in sitcoms as well as the academic press . . . . [M]others are resourceful providers who are strong and determined, and who are the first lines of defense from both internal and external threats to their children's emotional and physical well-being. Therefore, in comparison to men, women are good. Id. Consider also the subculture of (male or transgender) participants in competitive drag/voguing depicted in the documentary Paris Is Burning, who organize themselves into groups called "houses" whose leaders are called "mothers." PARIS IS BURNING (Miramax 1991). Filmmaker Jenny Livingston interviewed the mothers of two of the most successful houses. Although both were viewed as successful leaders (whether measured by number of followers attracted, satisfaction of the followers, competitive success of the members of the house, or general prestige), both also differed markedly in approach in ways that social scientists (although apparently not the two mothers themselves) would view as sharply gendered. One described the role of a "mother" as leading the house into battle, being tough, strong, and competitive; the other spoke of a "mother's" role as comforter and nurturer of the members of the house. Id. (Again, remember that both mothers are genetic males flourishing in a subculture that glories in their effeminacy). Not only is strong leadership potential here identified with a female role, the voguing subculture also demonstrates that both stereotypically masculine qualities and stereotypically feminine qualities can be seen by a successful leader as the key to success. As the work of a white lesbian depicting the lives of gay men of color, Livingston's film has generated much critical commentary. See, e.g., JUDITH BUTLER, BODIES THAT MATTER: ON THE DISCURSIVE LIMITS OF "SEX" 121-40 (1993); BELL HOOKS, REEL TO REAL: RACE, CLASS, AND SEX AT THE MOVIES 214-26 (1996); JACQUELINE ZITA, BODY TALK: PHILOSOPHICAL REFLECTIONS ON SEX AND GENDER 182-201 (1998); Jackie Goldsby, Queens of Language: Paris Is Burning, in QUEER LOOKS: PERSPECTIVES ON LESBIAN AND GAY FILM AND VIDEO 108-15 (Martha Gever et al. eds., 1993). Of course, in writing this article, I run some of the same risks as Livingston, but I can see no way to avoid these risks short of avoiding the subject entirely.
23. See, e.g., LEON E. PETTIWAY, HONEY, HONEY, MISS THANG: BEING BLACK, GAY, AND ON THE STREETS at xxxiv-xxxv (1996). Reporting of the black drag queens who are the subject of his book, Pettiway writes: They portray their mothers as matriarchs like those who have so often been depicted ruling their nests in sitcoms as well as the academic press . . . . [M]others are resourceful providers who are strong and determined, and who are the first lines of defense from both internal and external threats to their children's emotional and physical well-being. Therefore, in comparison to men, women are good. Id. Consider also the subculture of (male or transgender) participants in competitive drag/voguing depicted in the documentary Paris Is Burning, who organize themselves into groups called "houses" whose leaders are called "mothers." PARIS IS BURNING (Miramax 1991). Filmmaker Jenny Livingston interviewed the mothers of two of the most successful houses. Although both were viewed as successful leaders (whether measured by number of followers attracted, satisfaction of the followers, competitive success of the members of the house, or general prestige), both also differed markedly in approach in ways that social scientists (although apparently not the two mothers themselves) would view as sharply gendered. One described the role of a "mother" as leading the house into battle, being tough, strong, and competitive; the other spoke of a "mother's" role as comforter and nurturer of the members of the house. Id. (Again, remember that both mothers are genetic males flourishing in a subculture that glories in their effeminacy). Not only is strong leadership potential here identified with a female role, the voguing subculture also demonstrates that both stereotypically masculine qualities and stereotypically feminine qualities can be seen by a successful leader as the key to success. As the work of a white lesbian depicting the lives of gay men of color, Livingston's film has generated much critical commentary. See, e.g., JUDITH BUTLER, BODIES THAT MATTER: ON THE DISCURSIVE LIMITS OF "SEX" 121-40 (1993); BELL HOOKS, REEL TO REAL: RACE, CLASS, AND SEX AT THE MOVIES 214-26 (1996); JACQUELINE ZITA, BODY TALK: PHILOSOPHICAL REFLECTIONS ON SEX AND GENDER 182-201 (1998); Jackie Goldsby, Queens of Language: Paris Is Burning, in QUEER LOOKS: PERSPECTIVES ON LESBIAN AND GAY FILM AND VIDEO 108-15 (Martha Gever et al. eds., 1993). Of course, in writing this article, I run some of the same risks as Livingston, but I can see no way to avoid these risks short of avoiding the subject entirely.
24. JOHN BERENDT, MIDNIGHT IN THE GARDEN OF GOOD AND EVIL: A SAVANNAH STORY (1994), adapted and released as a motion picture, MIDNIGHT IN THE GARDEN OF GOOD AND EVIL (Warner Bros. 1997).
25. As the resistance included severe beatings by a mother and stepfather virulently opposed to Chablis's effeminacy and homosexuality, I do not mean to suggest that acceptance was complete and easy.
26. THE LADY CHABLIS WITH THEODORE BOULOUKOS, HIDING MY CANDY: THE AUTOBIOGRAPHY OF THE GRAND EMPRESS OF SAVANNAH 45 (1996) [hereinafter THE LADY CHABLIS, HIDING MY CANDY].
27. Id. at 39.
28. Valdes, supra note 1, at 217.
29. See THE LADY CHABLIS, HIDING MY CANDY, supra note 20, at 39.
30. Id. at 44.
31. WILL ROSCOE, THE ZUNI MAN-WOMAN 22 (1991).
32. Id. at 22-23.
33. THE LADY CHABLIS, HIDING MY CANDY, supra note 20, at 61.
34. Id.
35. Id.
36. Id. at 65.
37. Id. at 67, 70.
38. Kendall Thomas, a Professor of Law at Columbia University School of Law, participated in the InterSEXionality Symposium sponsored by the University of Denver College of Law and Denver University Law Review on February 6-7, 1998.
39. Fear of the liminal may also have played a part in the sexual harassment of an earring-wearing teenage boy in Doe v. City of Belleville, 119 F.3d 563, 566 (7th Cir. 1997). Co-workers repeatedly asked Doe, "Are you a boy or a girl?" Doe, 119 F.3d at 566. They called him "bitch" and eventually grabbed him by the testicles in an attempt "to finally find out if you are a girl or a guy." Id. at 567. "The sense of distinction," writes Pierre Bourdieu, which demands that certain things be brought together and others be kept apart, which excludes . . . all unions contrary to the common classification[,] . . . responds with visceral, murderous horror, absolute disgust, metaphysical fury, to everything which lies in Plato's "hybrid zone," everything . . . which by challenging the principles of the incarnate social order, especially the socially constituted principles of the sexual division of labor and the division of sexual labor, violates the mental order, scandalously flouting common sense. PIERRE BOURDIEU, DISTINCTION: A SOCIAL CRITIQUE OF THE JUDGEMENT OF TASTE, ch. 4 (Richard Nice trans., Harvard Univ. Press 1984) (1979).
40. TEA AND SYMPATHY (MGM 1956), adapted from ROBERT WOODRUFF ANDERSON, TEA AND SYMPATHY (Random House Play 1953).
41. TEA AND SYMPATHY (MGM 1956), adapted from ROBERT WOODRUFF ANDERSON, TEA AND SYMPATHY (Random House Play 1953).
42. Id.
43. While Tom's classmates sought to categorize him as an effeminate homosexual, similar childhood experiences shaped Christine (born George) Jorgensen's decision to seek a sex change. Jorgensen reported being accused of carrying school books like a girl or being a girl dressed in boys' clothing. See CHRISTINE JORGENSEN, A PERSONAL AUTOBIOGRAPHY 16 (1967). An elementary-school teacher who found a piece of needlepoint in Jorgensen's desk called Jorgensen's mother to school to ask, "[D]o you think this is anything for a red-blooded boy to have in his desk as a keepsake? The next thing we know George will be bringing his knitting to school." Id. at 15. On one account, then, the berdache tradition may free people like Lee and Jorgensen from needing to keep or acquire one part of what has been the socially accepted package deal of sex, gender, and orientation - it allows them to take up their sewing without first having to acquire a vagina. Although it may package gender and add to it orientation, berdache does not prescribe genital conformity to this package.
44. TEA AND SYMPATHY, supra note 34.
45. This marks an important difference between the play and the movie adaptation. While the movie's central theme is gender, the play's is sexual orientation. Thus, in the play, Tom Lee's troubles trace to his being observed, not sewing with the faculty wives, but going for a swim in the nude with an unmarried male instructor.
46. TEA AND SYMPATHY, supra note 34.
47. Id.
48. Id.
49. Pun intended.
50. Perhaps the only instances in contemporary American culture in which homosexual identity may be externally imposed may be certain genderbenders - effeminate boys and tomboys - pushed into gay identity by an outside world only too ready to typecast.
51. Even among those accepting of homosexuality and transgenderism, persons who desire others of the same gender can lack for acceptance. Although she apologizes by the end of the novel, Jess, the transgendered heroine of Stone Butch Blues, is initially distressed by the relationship between two of her butch friends: "The more I thought about the two of them being lovers, the more it upset me. . . . [T]wo butches? How could they be attracted to each other? Who was the femme in bed?" LESLIE FEINBERG, STONE BUTCH BLUES 202 (1993).
52. See Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 5-6 (1958). These days, some antitrust scholars do not think much of the prohibition on tying, but their criticisms reached me too late to have much influence on my personal intellectual history. For a scathing critique of prohibitions on tying, see ROBERT H. BORK, THE ANTITRUST PARADOX 365-81 (1978).
53. Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141 (1872) (Bradley, J., concurring).
54. Bradwell, 83 U.S. at 137.
55. 518 U.S. 515 (1996).
56. Virginia, 518 U.S. at 565 (Rehnquist, J., concurring) (internal citation omitted).
57. Lest one think that, pace Rehnquist, there is no realistic likelihood of a court's endorsement of separate spheres under current American law, consider, for example, Klinger v. Department of Corrections, 31 F.3d 727 (8th Cir. 1994), involving the sex-segregated sphere of the prison. In that case, the circuit court held it to violate the rights of neither male nor female prisoners for a prison system to choose to allocate resources so that female prisoners, but not males, were allowed overnight visits with their children, while male prisoners, but not females, were given extensive vocational training. Klinger, 31 F.3d at 732-33.
58. 347 U.S. 483 (1954).
59. United States Supreme Court Official Transcript at 18, United States v. Virginia, 518 U.S. 515 (1996) (Nos. 94-1941, 94-2107), available in 1996 WL 16020, at *18.
60. To the extent that the anti-subordination and anti-differentiation goals of the constitutional law of sex discrimination are in tension, Rehnquist emphasizes anti-subordination, for example by repeatedly objecting to heightened scrutiny for laws favoring men. Virginia, 518 U.S. at 559-60, 565. For further discussion, see Mary Anne Case, The Very Stereotype the Law Condemns: Constitutional Sex Discrimination Law as a Quest for Perfect Proxies (unpublished manuscript on file with the author).
61. Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982).
62. Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).
63. Plessy, 163 U.S. at 559.
64. See, e.g., Wright v. Rockefeller, 376 U.S. 52, 63-64 (1964) (Douglas, J., dissenting) (rejecting as un-American the Indian system of allocating parliamentary seats by religion and ethnic group). I realize I am building my argument here largely from dissenting Supreme Court opinions, but this, too, has become part of the American constitutional tradition, which has come to accord special status to eloquent and prescient dissents, from Harlan in Plessy v. Ferguson to those of Holmes and Brandeis in the free speech cases. See, e.g., HARRY KALVEN, A WORTHY TRADITION: FREEDOM OF SPEECH IN AMERICA 158 (1988).
65. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 113 (1872) (Bradley, J., dissenting).
66. Id. at 122. Bradley viewed it as a settled question that the law he hypothesized would be a violation of privileges and immunities; the only question he considered was whether the violation was of the privileges of federal as well as state citizenship. See id. But see Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 562 (1947) (upholding a licensing scheme for New Orleans river pilots that in effect allowed "the male members of a family [to] follow the same work from generation to generation" and closed that line of work to all without family connections). Once again in Kotch, the position I am advocating here is put forth by the dissent, which insisted that, even if it were to prove the most efficient means of selecting pilots, a selection system based on blood relationship, like one based on "race, color, creed and the like," is forbidden by the U.S. Constitution. See Kotch, 330 U.S. at 566 (Rutledge, J., dissenting). This is very much in line with the rejection of even very good proxies in modern constitutional sex discrimination cases.
67. Plessy, 163 U.S. at 1145.
68. Civil Rights Acts of 1964, Title VII, 42 U.S.C. §§ 2000e to 2000e-17 (1994).
69. Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). Note that the rejection of comparable worth as even a statutory, let alone a constitutional, principle in American law, can be seen as a rejection of the equalization of separate spheres as a solution to women's subordination.
70. 413 U.S. 376, 388-89 (1973) (holding that a local anti-discrimination ordinance prohibiting a newspaper from classifying help-wanted ads by sex did not violate the newspaper's First Amendment rights).
71. Pittsburgh Press Co., 413 U.S. at 379-80.
72. Again, for further discussion, see Case, supra note 53.
73. See Case, supra note 1, at 105 n.261 (exploring the historical precedents).
74. Although surely not in all societies, as British members of the audience rightly insisted when I delivered a version of this argument at the 1996 Law and Society conference in Glasgow.
75. Geoffrey Chaucer, The Wife of Bath's Tale, in CHAUCER'S POETRY 228 (E.T. Donaldson ed., 2d ed., Ronald Press Co. 1975).
76. And all women gentlemen as well? See LANI GUINIER ET AL., BECOMING GENTLEMEN: WOMEN, LAW SCHOOL, AND INSTITUTIONAL CHANGE 85 (1997) (describing a Yale Law School professor's justification of addressing all in his class, regardless of sex, as "gentlemen," since women law students, too, should cultivate the civilized detachment associated with the gentlemanly ideal); cf. LUISE F. PUSCH, ALLE MENSCHEN WERDEN SCHWESTERN (1990) (exploring the difference in emphasis created by change in gender of words, e.g., when "alle Menschen" ("all human beings") are described as "sisters" ("Schwestern") instead of "brothers").
77. And all women gentlemen as well? See LANI GUINIER ET AL., BECOMING GENTLEMEN: WOMEN, LAW SCHOOL, AND INSTITUTIONAL CHANGE 85 (1997) (describing a Yale Law School professor's justification of addressing all in his class, regardless of sex, as "gentlemen," since women law students, too, should cultivate the civilized detachment associated with the gentlemanly ideal); cf. LUISE F. PUSCH, ALLE MENSCHEN WERDEN SCHWESTERN (1990) (exploring the difference in emphasis created by change in gender of words, e.g., when "alle Menschen" ("all human beings") are described as "sisters" ("Schwestern") instead of "brothers").
78. Richard Rorty, Feminism and Pragmatism, 30 MICH. Q. REV. 231, 248 (1991).
79. Id. at 243-44.
80. Id. at 246.
81. Britannica Online, Humour (visited Dec. 6, 1998) 〈http:www.eb.com: 180/cgi-bin/g?DocF=micro/281/67.html〉.
82. Janet McCue, Color Me Blue, CLEV. PLAIN DEALER, Nov. 30, 1995, at 1E. The fact that new versions of "Color Me Beautiful" have expanded the number of options to twelve may be an improvement, but, from my perspective, not a solution to the problem. See MARY SPILLANE & CHRISTINE SHERLOCK, COLOR ME BEAUTIFUL'S LOOKING YOUR BEST: COLOR, MAKEUP, AND STYLE 22-23 (1995), the follow-up to CAROLE JACKSON, COLOR ME BEAUTIFUL: DISCOVER YOUR NATURAL BEAUTY THROUGH THE COLORS THAT MAKE YOU LOOK GREAT AND FEEL FABULOUS! (1980).
83. Janet McCue, Color Me Blue, CLEV. PLAIN DEALER, Nov. 30, 1995, at 1E. The fact that new versions of "Color Me Beautiful" have expanded the number of options to twelve may be an improvement, but, from my perspective, not a solution to the problem. See MARY SPILLANE & CHRISTINE SHERLOCK, COLOR ME BEAUTIFUL'S LOOKING YOUR BEST: COLOR, MAKEUP, AND STYLE 22-23 (1995), the follow-up to CAROLE JACKSON, COLOR ME BEAUTIFUL: DISCOVER YOUR NATURAL BEAUTY THROUGH THE COLORS THAT MAKE YOU LOOK GREAT AND FEEL FABULOUS! (1980).
84. Janet McCue, Color Me Blue, CLEV. PLAIN DEALER, Nov. 30, 1995, at 1E. The fact that new versions of "Color Me Beautiful" have expanded the number of options to twelve may be an improvement, but, from my perspective, not a solution to the problem. See MARY SPILLANE & CHRISTINE SHERLOCK, COLOR ME BEAUTIFUL'S LOOKING YOUR BEST: COLOR, MAKEUP, AND STYLE 22-23 (1995), the follow-up to CAROLE JACKSON, COLOR ME BEAUTIFUL: DISCOVER YOUR NATURAL BEAUTY THROUGH THE COLORS THAT MAKE YOU LOOK GREAT AND FEEL FABULOUS! (1980).