Primary Source: Gender and the Supreme Court

The Nine wade into another “on the basis of sex” case

or all the decisions the Supreme Court has made every year over its two plus centuries of existence, there are certain topics that repeatedly and regularly find their way into the nation’s court of last resort. Freedom of speech, capital punishment, affirmative action, freedom of religion, searches and seizures; these and more, in one form or another, are mainstays — a sort of greatest hits of the court’s issues.

Add gender to that list. As long as there is more than one gender in the country, the court has to decide on what is fair an equal treatment for each. Just last month, the court agreed to hear whether employment protections guaranteed by the Civil Rights Act of 1964 — which has been the basis of so many cases in its fifty-five years on the books — applies to LGBT employees. These three cases will likely be decided by June.

Chief Justice John Roberts and Justices Elena Kagan, Neil Gorsuch and Brett Kavanaugh. (Getty Images)

The Supreme Court has had its hand in many important gender-related cases. Below are just a sampling of them. How has the court’s philosophy on sex and gender changed as time has gone on? How have the decisions reflected that, until 1981, the court was exclusively made up of men? To what extent is the court insulated from politics, and to what extent is it influenced by them?

The court decides that men and women are different.

Muller v. Oregon, 1908

In 1905, Curt Muller, a laundry owner in Portland, Oregon, was was cited for overworking his employee, Mrs. E. Gotcher. Oregon had passed a law two years earlier, requiring that “no female [shall] be employed in any mechanical establishment, or factory, or laundry in this State more than ten hours during any one day.” Muller was convicted and fined $10.

Muller argued that any person has a right to enter into whatever contract he or she wants, and that the law violated the Fourteenth Amendment, which guarantees equal protection under the law. The court took up the case and decided unanimously in 1908, focusing on what it perceived to be the key issue.

[H]istory discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior physical strength, and this control in various forms, with diminishing intensity, has continued to the present. As minors, though not to the same extent, she has been looked upon in the courts as needing especial care that her rights may be preserved. Education was long denied her, and while now the doors of the schoolroom are opened and her opportunities for acquiring knowledge are great, yet, even with that and the consequent increase of capacity for business affairs, it is still true that, in the struggle for subsistence, she is not an equal competitor with her brother. . . .

Doubtless there are individual exceptions, and there are many respects in which she has an advantage over him; but, looking at it from the viewpoint of the effort to maintain an independent position in life, she is not upon an equality. . . .

The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long-continued labor, particularly when done standing, the influence of vigorous health upon the future wellbeing of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. This difference justifies a difference in legislation, and upholds that which is designed to compensate for some of the burdens which rest upon her.

Curt Muller (arms folded) at his Lace House Laundry.

Fifteen years later, a change of heart.

Adkins v. Children’s Hospital, 1923

In 1918, Congress set a minimum wage for women and children in the District of Columbia. Children’s Hospital of D.C., which employed many women, sued, claiming they couldn’t pay all that extra money.

The surgical ward of Children’s Hospital of D.C. (Paul K. Williams)

By the time the case reached the Supreme Court in 1923, feminism was on the rise and the Nineteenth Amendment — guaranteeing women’s right to vote — had been ratified. Additionally, the court during this period of time was against business regulations. It struck down the minimum wage law, but the court’s proclivities and the politics of the nation can be seen working together in the 5–3 opinion.

The [Muller] decision proceeded upon the theory that the difference between the sexes may justify a different rule respecting hours of labor in the case of women than in the case of men. It is pointed out that these consist in differences of physical structure, especially in respect of the maternal functions, and also in the fact that, historically, woman has always been dependent upon man, who has established his control by superior physical strength. . . .

But the ancient inequality of the sexes, otherwise than physical, as suggested in the Muller case has continued “with diminishing intensity.” In view of the great — not to say revolutionary — changes which have taken place since that utterance, in the contractual, political and civil status of women, culminating in the Nineteenth Amendment, it is not unreasonable to say that these differences have now come almost, if not quite, to the vanishing point.

In this aspect of the matter, while the physical differences must be recognized in appropriate cases, and legislation fixing hours or conditions of work may properly take them into account, we cannot accept the doctrine that women of mature age, sui juris [“of age”], require or may be subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances. To do so would be to ignore all the implications to be drawn from the present day trend of legislation, as well as that of common thought and usage, by which woman is accorded emancipation from the old doctrine that she must be given special protection or be subjected to special restraint in her contractual and civil relationships.

Adkins was later overturned in 1937, when the court upheld Washington’s minimum wage law.

The National Consumer’s League satirized the case. (Library of Congress)

Privacy, though not stated, is a Constitutional right.

Roe v. Wade, 1973

“I think one of the purposes of the Constitution,” attorney Sarah Weddington argued to the Supreme Court in 1971, “was to guarantee to the individual the right to determine the course of their own lives.” Weddington was delivering her opening argument to the Court on behalf of “Jane Roe,” the pseudonym for Norma McCorvey, who challenged Dallas district attorney Henry Wade, the enforcer of the anti-abortion statute. McCorvey had become pregnant in 1969 and didn’t want the child, but Texas law forbid her an abortion because her health was not in danger.

Mike Wallace presents the abortion debate on 60 Minutes before the Roe v. Wade decision, May 14, 1972 (CBS)

The case went to the top court, and its decision, which covered many topics from viability, the start of life, the mother’s health and a woman’s privacy, has become one of the most controversial in the court’s history.

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved.

Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. . . .

Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those “procured or attempted by medical advice for the purpose of saving the life of the mother,” sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, “saving” the mother’s life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here.

Walter Cronkite announces the Roe v. Wade decision on the CBS Evening News, January 22, 1973. (CBS)

A man can be harassed, too.

Oncale v. Sundowner, 1998

Title VII of the 1964 Civil Rights Act establishes that “[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

In 1991, Joseph Oncale quit his job at Sundowner Offshore Services after his co-workers sexually harassed and assaulted him. Oncale sued Sundowner, claiming he’d been discriminated against on the basis of his sex. He lost in District Court, appealed to the Court of Appeals and lost there too. At the Supreme Court in 1998, the justices had to answer, “Does the prohibition against sex discrimination apply to same-sex sexual harassment?”

Joseph Oncale with his lawyers.

Justice Antonin Scalia wrote the majority’s unanimous opinion.

Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual.

But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.

Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted “ discrimina[tion] . . . because of . . . sex.”

Justice Antonin Scalia delivered the opinion of the court. (Reuters)

Can a football player say #MeToo?

The Oncale case set the precedent that there didn’t have to be any sexual desire in order for there to be sexual harassment, only that the harasser’s actions create “disadvantageous terms or conditions of employment.” What, then, about occupations where there’s more physical touching, as in sports? In the same opinion, Justice Scalia attempted to get ahead of that question.

We have emphasized, moreover, that the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering “all the circumstances.” In same-sex (as in all) harassment cases, that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target.

A professional football player’s working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field — even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office.

The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.

Northwestern University football coach Pat Fitzgerald hugs player Austin Carr, 2016. (Iowa Gazette)

I am currently working on a book about Ah Toy, the first Chinese brothel madam in gold rush San Francisco.

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Noel C. Cilker

I’m a writer, interested in history’s stories and the links between then and now.