Gender Difference and Gender Disadvantage

This paper explores the theoretical foundations of American sex discrimination law. Traditional legal frameworks have analyzed gender issues in terms of gender difference. Yet, inder this approach, sex-based differences have been both overlooked and overvalued. In some instances, such as occupational restrictions and military service, courts have transformed biological distinctions into cultural imperatives. In other cases, such as those involving pregnancy, sex-based differences have remain unacknowledged and unaddressed. The alternative framework proposed here focuses less on gender difference than on gender disadvantage- on inequalities in the sexes' social status, political power, and economic security. Taking issues surrounding occupational restrictions, protective labor, and maternity policies as representative samples, the paper suggests how a contextual inquiry can usefully shift gender discrimination law from its focus on difference to the consequences that follow from it. For most of this nation's history, the law's approach to gender difference has alternated between exaggeration and neglect. Neglect has been the preferred strategy; the recent cluster of Bicentennial conferences on women and the Constitution is an ironic reminder of the fact.¹ When the nation's founding fauthers spoke of "We the People" they were not using the term generically. Although subject to the Constitution's mandates, women were unacknowledged in its text, uninvited in its formulation, unsolicited in its ratification, and, before the last quarter-century, largely uninvolved in its interpretation. Yet, as these recent conferences also testify, such patterns of silence have been broken. Women have found a voice. How we should use it is a question worthy of greater exploration. The following analysis considers a specific set of questions about voice. How we describe the relation between the sexes involves a politics of paradigms that legal decision makers rarely acknowledge or address. For the most part, traditional legal frameworks have analyzed gender issues in terms of gender difference. Under this approach, sex-based distinctions have been both overvalued and overlooked. In some contexts, such as occupational restrictions, courts have transformed biological differences into cultural imperatives. In other cases, such as those involving pregnancy, those differences have remained unrecognized. Significant progress will require an alternative framework, one focused not on gender difference but on gender disadvantage.