“I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”
— Justice Ruth Bader Ginsburg, quoting Sarah Grimké
While Sarah Grimké first authored these words nearly two hundred years ago, Justice Ginsburg revived them when she quoted this line to open her eponymous documentary. It is striking that this quote from a woman in the mid-nineteenth century would resonate so strongly with twenty-first-century women that the filmmakers chose it to frame the film. Grimké penned these words in a cultural and legal landscape almost unrecognizable to modern eyes—slavery was legal and thriving,
women could not vote,
and there were no federal civil rights laws.
And yet, Grimké’s words connected with Justice Ginsburg very deeply. Louise Knight, a historian writing a biography on Grimké, posited why this connection “makes sense”: “Though born 141 years apart, both women encountered obstacles because of their gender; both women insisted that ‘our brethren’ take their feet ‘off our necks.’ And they both gravitated toward the law. Grimké wanted to become a lawyer and a judge, too. She wanted to become what Ginsburg became.”
Justice Ginsburg is well known as one of the founders of modern sex discrimination jurisprudence, based in large part on the cases she brought as a litigator before joining the Supreme Court.
In the wake of the tremendous loss of Justice Ginsburg, countless tributes celebrated her legacy through the lens of her impact on sex discrimination law.
Ginsburg’s litigation was momentous for successfully establishing that the Fourteenth Amendment’s Equal Protection Clause protects against discrimination based on sex.
But the import of these cases went even further—they set the framework for how the judiciary, legal scholars, and the American public understand sex discrimination.
Grimké’s analogy of “feet” on women’s “necks” takes on added significance as a window into how Justice Ginsburg understood sex discrimination—legal barriers that create artificial obstacles to women’s full participation in society.
But what exactly does it mean to discriminate because of sex? Even if the definition of sex is clear,
the definition of sex discrimination does not follow seamlessly. After decades of case law, the Supreme Court has established certain principles for determining what constitutes sex discrimination, but much ambiguity remains.
Even in cases where a court has found discrimination because of sex, the perpetrator is almost never actually scrutinizing the target’s biology.
Thus, to discriminate because of sex must mean something more than treating someone worse solely because of their biology.
Bostock v. Clayton County,
a recent Supreme Court decision, waded into this muddled jurisprudence and immediately made a splash; however, its full meaning and scope are not immediately clear. The holding, that Title VII’s prohibition on sex discrimination includes discrimination based on sexual orientation and gender identity,
is fairly straightforward. Its broader implications, on the other hand, are still emerging.
This Note offers one interpretation for Bostock’s implications. It argues that Bostock fundamentally redefined what it means to discriminate because of sex, expanding the definition to include discrimination based on any characteristic that is definitionally related to, and thus logically inseparable from, sex. Situating this decision within sex discrimination jurisprudence and extrapolating from Title VII to the Fourteenth Amendment context,
this Note demonstrates that Bostock’s redefinition challenges earlier decisions that excluded certain forms of sex discrimination, such as pregnancy discrimination and reproductive choice restrictions, from equal protection’s scope. Intentional or not, the majority’s rationale ensured that the decision would enter into the decades-long search for the true meaning of sex discrimination.
This Note proceeds in three parts. Part I traces the history of constitutional sex discrimination jurisprudence, including the seminal cases that established the framework for this area of law and the scholarship that has helped explain and shape it. It also discusses the areas of apparently sex-based state action that the Court has deemed outside the scope of equal protection’s prohibition on sex discrimination, specifically focusing on laws regulating pregnancy and abortion access. Part II examines Bostock in depth, delving into the opinions’ definitions of sex discrimination. It posits that the majority’s definition of sex discrimination expanded its scope, enveloping a wider array of sex-based regulation. Part III examines how Bostock’s redefinition applies to prior and future decisions, demonstrating that Bostock provides the basis for holding that laws regulating pregnancy and abortion access are sex-based and thus should be subject to intermediate scrutiny.