A rising tide: The transformation of sex discrimination into gender discrimination and its impact on law enforcement

International Journal of Human Rights

Volumn 14, Issue 2, 2010, Pages 189-214

  Rudyk, Andrew ^a  

^a JOHN JAY COLLEGE OF CRIMINAL JUSTICE   (United States)

Author keywords

1983; 42 U.S.C. sect; Equal Opportunity Act of 1972; Equal protection; European union; Gender discrimination; Gender identity disorder; Gender stereotypes; GID; Homosexual; Law enforcement; Liability; Same sex discrimination; Sex discrimination; Sex stereotypes; Sexual harassment; Sexual orientation; Title VII Civil Rights Act of 1964; Transsexual; United states

Indexed keywords

EID: 79956256067     PISSN: 13642987     EISSN: 1744053X     Source Type: Journal    
DOI: 10.1080/13642980802535625     Document Type: Article

References (62)

1. Civil Rights Act of 1964, Pub. 50. 88-352 (1964).
2. Martha Fetherolf Loutfi (ed.) 'Women, gender and work: What is equality and how do we get there?' Chapter 1.
3. Martha Fetherolf Loutfi, 'Women, Gender and Work - An Overview 4' (Geneva: International Labour Office, 2001).
4. 'It is also time to take into account more of the various ways in which men and women may be different. Some, especially among those that are physical and biological, are irreducible; many are certainly remediable. All need to be examined. Many differences between men and women, such as those in income, life expectancy, educational attainment, can be seen and measured; and redressed. Laws and government policies can be examined to determine whether there is discrimination against men or women. But many other differences - and the causes of most - lie in what is covered under the term 'gender'. That term refers to the social constructs - the institutions - that greatly influence our behaviour and interactions. When one speaks of gender roles, those are roles linked to sex and sexual stereotypes that are largely determined by the culture and society in which each of us lives. 'Gender' is not (and should not be used as) equivalent to 'female' or a euphemism for 'sex'. It is quite appropriate to seek both equality between men and women and gender equality, with the latter implying roles that may well be different but are equal in status and social esteem. There will always be social and institutional constructs around what is male and female, but they need not be unequal in value....'.
5. H.R. 3685 110th Congress 1st Session, An Act To prohibit employment discrimination on the basis of sexual orientation; [ENDA of 2007.]; Report No. 110-406, Part I.
6. H.R. 2015 110th Congress 1st Session, An Act To prohibit employment discrimination on the basis of sexual orientation or gender identity. [ENDA of 2007.].
7. Barney Frank, Statement, House of Representatives, 9 October 2007, 'Protecting People Against Discrimination Based on Their Sexual Orientation and Gender Identity'. See Table 1 for a list of states that prohibit discrimination based on sexual orientation and/or gender identity. With the election of Democrat Barack Obama as President of the United States and the capture of both houses of Congress by the Democrats, Representative Frank intends to introduce a new comprehensive ENDA covering both Sexual Orientation and Gender Identity Disorder. 'Protecting People Against Discrimination Based on Their Sexual Orientation And Gender Identity.
8. Lou Chibbaro, Jr., "Trans-inclusive ENDA to be introduced in House," 19 June, 2009, washingtonblade.com, at,www.washblade.com/2009/6-19/news/national/147333.cfm.
9. Compiled by author. Sources of data are: Human Rights Campaign, http://www.hrc.org/laws_and_elections/state.asp
10. US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Census of State and Local Law Enforcement Agencies, 2004, June 2007, NCJ 212749. US Census Bureau, 2002 Census of Governments, Volume 1, Number 1, Government Organization, GC02(1)-1. 2002 Census of Governments, Volume 1, Number 2, Individual State Descriptions: 2002, GC02(1)-2. 2002 Census of Governments, Volume 3, Number 1, Employment of Major Local Governments, GC03(1)-1. 2002 Census of Governments, Volume 3, Number 2, Compendium of Public Employment: 2002, GC02(3)-2. US Government Printing Office, Washington, DC, 2002: Executive Order 13087, Further Amendment to Executive Order 11478, Equal Employment Opportunity in the Federal Government, May 28, 1998, and Office of Personnel Management 'Addressing Sexual Orientation Discrimination in Federal Civilian Employment: A Guide to Employee's Rights',www.opm.gov/er/address2/Guide01.asp.
11. Hugh Davis Graham, The Civil Rights Era: Origins and Development of National Policy, 1960-1972 (New York: Oxford University Press, 1990).
12. Cynthia Harrison, On Account of Sex: The Politics of Women's Issues, 1945-1968 (Berkley, CA: University of California Press, 1988).
13. E.W. Kenworthy, 'Jobs Issue Blocks Attempt in House to Vote on Rights', NY Times, February 9, 1964.
14. Charles Whalen and Barbara Whalen, The Longest Debate: A Legislative History of the 1964 Civil Rights Act (Cabin John, MD: Seven Locks Press, 1984), 115-118.
15. Graham, The Civil Rights Era, 137-138.
16. Harrison, On Account of Sex, 177. According to Harrison, Smith was working in coordination with the National Woman's Party to kill the bill; both however agreed that if it passed, they wanted white woman not to be disadvantaged.
17. Ulane v. Eastern Airlines, 742 F.2d 1081 (7th Cir., 1984), citing Holloway v. Arthur Andersen and Company, 566 F.2d 659 (9th Cir., 1977).
18. Kenworthy, 'Jobs Issue Blocks Attempt in House to Vote on Rights'. Catherine May made her statement at the request of Emma Guffy Miller, Chairman of the National Woman's Party (NWP). In a letter dated 15 April 1964 to Seymour H. Kaplan, regional director of the Pacific Northwest Office of the Anti-Defamation League of B'nai B'rith May stated that Guffy's purpose as May understood it when she was asked to put the NWP letter to all Congressmen into the record was to include sex in the legislation and not to make an anti-Semitic statement. In a cover letter to her friend Stuart Semon, who apparently had asked her to reassure Kaplan, she wrote: 'May I tell you confidentially that this National Woman's Party is really a kookie outfit....' It may be that the estimable Mrs Miller had a touch of anti-Semitism in mind when she wrote her letter to Congress but she assures me that such is not the case.' She added. 'In heaven's name please destroy this letter because I would rather have the Teamsters' Union on my neck that the National Woman's Party and Emma!' Letter from Catherine May to Personal Friend Stuart Semon regarding Enclosed Correspondence on National Women's Party, 1964. Catherine Dean May (Bedell) A Digitized Collection of her Congressional Papers 1959-1970.
19. By the Equal Opportunity Act of 1972, Pub.L.No. 92-261, 86 Stat. 103 (24 March 1972), 42 U.S.C. 2000e et seq. (1972).
20. 42 U.S.C. 1983. Civil action for deprivation of rights (also known as the Civil rights Act of 1871): 'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
21. 433 U.S. 321 (1977).
22. Holloway v. Arthur Andersen and Company, 566 F.2d 659 (9th Cir., 1977).
23. Ulane v. Eastern Airlines, 742 F.2d 1081 (7th Cir., 1984).
24. Case C-249/96 ECR I-621, Judgment of the Court of 17 February 1998, Lisa Jacqueline Grant v. South-West Trains Ltd. [1998]. The decision required the court to interpret: Article 119 of the European Community; Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, p. 19), and Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40).
25. Case C-13/94, ECR I-02143 [1996] P v. S and Cornwall County Council, Judgment of the Court of 30 April 1996.
26. Williams v. Saxbe, 413 F.Supp 654 (D.D.C. 1976), rev'd and remanded on other grounds sub nom. Williams v. Bell, 587 F.2d 1240 (D.C. Cir. 1978), decided on remand sub nom. Williams v. Civiletti, 487 F.Supp 1387 (D.D.C. 1980).
27. 29 C.F.R. 1604.11(a) Sexual harassment.
28. 477 U.S. 57.
29. 510 US 17 (1993).
30. Equal Employment Opportunity Commission, Interpretative Manual (EEOC Compliance Manual) Section 615 Harassment, 615.3(b), Sexual Harassment Guidelines, and 615.5(l). 25. 524 U.S. 775 (1998).
31. 524 U.S. 742 (1998).
32. 27. Loc. sit.
33. Holman v. State of Indiana and Indiana Department of Transportation, 211 F.3d 399, (7th Cir. 2000) cert. denied, 531 U.S. 880 (2000).
34. 490 U.S. 228 (1989).
35. 119 F. 3d 563 (7th Cir. 1997).
36. 523 U.S. 75 (1998).
37. 378 F.3d 566 (6th Cir. 2004).
38. Ruth Bader Ginsburg, Advocating the Elimination of Gender-Based Discrimination: the 1970's New Look on the Equality Principle, University of Capetown, South Africa, February 10, 2006. Justice Ginsburg was in South Africa on a visit hosted by the Constitutional Court of South Africa and the University of Cape Town, in cooperation with the United States Embassy, to address groups at the Constitutional Court, various universities, and in several informal settings on the comparative international perspective in constitutional law.
39. In the Matter of the Motion to Admit Miss Lavinia Goodell to the Bar of this Court, 39Wis. 232 (1875).
40. Meera Trehan, 'Dorothy Kenyon', Women's Legal History, http://womenslegalhistory.stanford.edu.
41. Gwen Hoerr Jordan, 'Agents of (Incremental) Change: From Myra Bradwell to Hillary Clinton', http://works.bepress.com/gwen_jordan/1
42. 83 U.S. 36 (1872).
43. Amy Leigh Campbell, 'Raising the Bar: Ruth Bader Ginsburg and the ACLU Women's Rights Project', Texas Journal of Women and the Law 11, no. 157 (Spring 2002).
44. Reed v. Reed, 404 U.S. 71 (1971) which held that a 'mandatory provision of the Idaho probate code that gives preference to men over women when persons of the same entitlement class apply for appointment as administrator of a decedent's estate is based solely on a discrimination prohibited by and therefore violative of the Equal Protection Clause of the Fourteenth Amendment'. Frontiero v. Richardson, 411 U.S. 677 (1973) which held that federal law that spouses of male members of the uniformed services are dependents for purposes of obtaining increased quarters allowances and medical and dental benefits, but that spouses of female members, in this case a married woman Air Force officer, are not dependents unless they are in fact dependent for over one-half of their support was violative of the 'Due Process Clause of the Fifth Amendment insofar as they require a female member to prove the dependency of her husband'. Weinberger v.Wiesenfeld, 420 U.S. 636 (1975) which held that '[t]he gender-based distinction mandated by he provisions of the Social Security Act...that grant survivors' benefits based on the earnings of a deceased husband and father covered by the Act both to his widow and to the couple's minor children in her care, but that grant benefits based on the earnings of a covered deceased wife and mother only to the minor children and not to the widower, violates the right to equal protection secured by the Due Process Clause of the Fifth Amendment, since it unjustifiably discriminates against female wage earners required to pay social security taxes by affording them less protection for their survivors than is provided for male wage earners'. Craig v. Boren, 429 U.S. 190 (1976), held 'that an Oklahoma statutory scheme prohibiting the sale of 'nonintoxicating' 3.2% beer to males under the age of 21 and to females under the age of 18 constituted a gender-based discrimination that denied to males 18-20 years of age the equal protection of the laws'. Califano v. Goldfarb, 430 U.S. 199 (1977) which affirmed a district court's decision holding that 'the Social Security Act survivors' benefits based on the earnings of a deceased husband covered by the Act are payable to his widow regardless of dependency, but under 42 U.S.C. 402 (f) (1) (D) such benefits on the basis of the earnings of a deceased wife covered by the Act are payable to her widower only if he was receiving at least half of his support from her', constituted 'invidious discrimination against female wage earners by affording them less protection for their surviving spouses than is provided to male employees'.
45. 83 U.S. 130 (1872).
46. 517 U.S. 620 (1996).
47. 539 U.S. 558 (2003).
48. 478 U.S. 186 (1986).
49. Lawrence, loc. cit.
50. 595 F.2d 1367, 1373 (9th Cir. 1979), cert. denied, 446 U.S. 928 (1980).
51. Annis v. County of Westchester, 36 F.3d 251 (2d Cir., 1994); Accord, Gierlinger v. New York State Police, 15 F.3d 32 (2d Cir., 1994).
52. 53 F. Supp. 2d 347, 350 (E.D.N.Y. 1999).
53. 401 F.3d 729, 736 (6th Cir. 2005).
54. 247 F.3d 288 (1st Cir. 2001).
55. 67 Mass. App. Ct. 596 (2006).
56. General Law G. L. c. 151B.
57. 447 F.3d 85, 104 (1st Cir.2006). See Miro Martinez v. Blanco Velez Store, Inc., 393 F. Supp. 2d 108; 2005 U.S. Dist. LEXIS 21479 (DPR, 2005) discussing the Supreme Court of Puerto Rico's decision Keyla Rosario Toledo, et al., Demandante-Recurridos v. Distribuidora Kikuet, Inc. et al., Demandados-Peticionarios, 152 P.R. Dec. 634, 151 P.R. Dec. 634, 2000 Juris P.R. 118, 2000 WL 943550 (2000), and the establishment of personal liability for discrimination under various laws of Puerto Rico including Puerto Rico's Law 100, law against discrimination in the workplace, Law 69, law against discrimination in employment on the basis of sex; and Law 17, law against sexual harassment.
58. United Nations, CEDAW, States Parties, http://www.un.org/womenwatch/daw/cedaw/stateshtm;CEDAW:ALong-AwaitedConvention http://www.voices-unabridged.org/format/creat_ss_format.php?id_ss_article1/4242.
59. See note 18 above,} 48.
60. Official Journal of the European Communities 50 269-315, 5.10.2002.
61. Official Journal of the European Communities L 303/16 2.12.2000 (11) Discrimination based on religion or belief, disability, age or sexual orientation may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and social protection, raising the standard of living and the quality of life, economic and social cohesion and solidarity, and the free movement of persons. (12) To this end, any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community. This prohibition of discrimination should also apply to nationals of third countries but does not cover differences of treatment based on nationality and is without prejudice to provisions governing the entry and residence of third-country nationals and their access to employment and occupation.
62. '...A directive is binding on the Member States as regards the objective to be achieved but leaves it to the national authorities to decide on how the agreed Community objective is to be incorporated into their domestic legal systems....' Dr Klaus-Dieter Borchardt, The ABC of Community Law, Fifth edition, September 1999, European Commission, Directorate- General for Education and Culture Publications Unit, rue de la Loi/Wetstraat 200, B-1049 Brussels.