sex, gender, and U.S law midterm

3 levels of scrutiny

strict, intermediate, rational basis

Strict Scrutiny

(most rigorous form of judicial review) (Once a court determines that strict scrutiny must be applied, it is presumed that the law or policy is unconstitutional.) •Standard for determining the constitutionality of discriminatory laws based on or about: •Suspect Classification ( discrimination on the basis of sex, gender, and race) OR •Fundamental Rights •Government has burden of proof. •The End: •Courts must have found a compelling interest to discriminate on behalf of the government. •The Means: No more discrimination is used than needed in the law to achieve the goal of government

State Non Discrimination Laws

- 21 states + DC : state law explicitly prohibits discrimination based on sexual orientation and gender identity - 2 states: state explicitly interprets existing prohibition on sex discrimination to include sexual orientation and/or gender identity - 1 state : state law explicitly prohibits discrimination based on sexual orientation only - 26 states : no explicit prohibitions for discriminations based on sexual orientation or gender identity in state law

Eyer article : "Have We Arrived Yet? LGBT Rights and the Limits of Formal Equality"

- No, we are close but have no achieved many of the legal doctrines that will secure formal legal equality for the LGBT community -achieving true equality within a formal equality regime itself poses many serious challenges -

Liptak reading : "Supreme Court to Decide Whether Landmark Civil Rights Law Applies to Gay and Transgender Workers"

- The Equal Employment Opportunity Commission has said the 1964 act does guarantee the protections but, the trump administration claims it cannot be applied to discrimination based on sexual orientation or transgender status. - 2 out of 3 cases (N.Y and Chicago) ruled that discrimination against gay men and lesbians is a form of sex discrimination.

Brechlin & McFarland 2020: Families of three Connecticut high school students file lawsuit seeking to prevent transgender athletes from participating in girls sports

- The families of three female high school runners tried to prevent transgender athletes from participating in girls sports in Connecticut - filed a title IX discrimination complaint -Wednesday. The lawsuit seeks to reverse a Connecticut Interscholastic Athletic Conference rule that allows high school athletes to compete in sports corresponding with their gender identity. (if successful, athletes would be required to compete based on their birth sex)

Types of laws : Ordinances

- laws passed at state and local level

How are social norms related to the study of gender, sexuality, and the law?

- norms can influence law -

Devogue & Cohen article : " Supreme Court allows transgender military ban to go into effect"

- order blocks individuals diagnosed with gender dysphoria from serving -individuals w/o condition can serve but must do so w/ sex assigned @ birth -Most transgender persons are now disqualified from military service except: a. members who have been stable for 3 years(36 months after completion of surgery and hormone treatments.) b. Service members diagnosed with "gender dysphoria" after joining the military can stay in the military if they don't require a change of gender and remain deployable. c. Service members who were diagnosed with "gender dysphoria" before the eective date of the policy can still serve and receive medical treatment. d. Transgender persons without a gender dysphoria diagnosis or history can serve in their birth sex.

Don't Ask, Don't Tell (1994)

- the official United States policy on military service by gays, bisexuals, and lesbians, instituted by the Clinton Administration on February 28, 1994 -The policy prohibited military personnel from discriminating against or harassing closeted homosexual or bisexual service members or applicants, while restricting discussing openly gay, lesbian, or bisexual persons from military service. - The act prohibited any homosexual or bisexual person from disclosing their sexual orientation or from speaking about any homosexual relationships, including marriages or other familial attributes, while serving in the United States armed forces

Historical Background:

- women and LGBT citizens were considered 2nd class citizens -seen as less important in society, not given a fair share of respect, recognition, or consideration -apart of a minority group, also denied the social, political, and economic benefits or citizenship

Pregnancy discrimination act of 1976

-Title VII prohibits discrimination in all aspects of employment, including hiring, firing, promotion, pay, and other employment BUT, in response to General Electric Company V. Gilbert, the Supreme Court rules that pregnancy discrimination was not sex discrimination therefore it is a temporary disability and should be in the same protected class as other disability claims •Pregnancy is not a legal reason to not hire someone •Pregnancy cannot determine employment opportunities or consequences •Pregnancy must be treated as any other medical or temporary conditions •Equal access to rights and benefits

What is Law and Why Does It Exist?

-a rule of conduct that is formally recognized and enforced by controlling authority -The system of rules which a country or community recognizes as regulating the actions of its members and which may enforce by the imposition of penalties. •Laws are formalized norms!

executive order

-a signed, written, and published directive from the President of the United States that manages operations of the federal government - issued w/o congressional approval -Important because not bipartisan efforts (Next president can undo the last president's executive orders) - EXECUTIVE ORDER IS AN ORDER BY THE PRESIDENT OR THE United States WHICH OVERRIDES CONGRESS but, WHATEVER IS ISSUED BY ONE PRESIDENT CAN BE UNDONE BY THE NEXT - increase of executive orders in recent presidency's is due to the increase split of parties resulting in disagreement so executive order is used to get things to pass

history of women and voting

-constitution did not originally grant women the right to vote -Women's suffrage is the right of women to vote in elections. Beginning in the late 19th century, women sought to change voting laws to allow them to vote - 19th amendment passed in 1920 -western states were the first states to give women the right to vote... WYOMING

1984: Equal Access Act

-passed in 1984 to compel federally funded secondary schools to provide equal access to extracurricular student clubs. -allowed student-run religious groups to meet in public schools and allowed students to from gay straight alliances clubs

How has Title VII progressed throughout time?

-started on the basis of sex and grew to include national origin and race

Affirmative action

-the practice or policy of favoring individuals belonging to groups known to have been discriminated against previously. - present in Johnson v. Transportation agency

what is sex discrimination?

2 different types of sex based employment discrimination claims: 1. Protect claims ( the discrimination was solely based on sex, no matter the reasons given by the employer) 2. Mixed Motive Claims: (Cases involving both sex discriminatory reasons and non- discriminatory factors for decisions by an employer.) ** Plaintiff has burden of proof

Muller v. State of Oregon (1908)

> An Oregon laundry owner was convicted for limiting a woman hours of workM > S.C. said no to 14th amendment protections of women's freedom to negotiate work, saying there is strong government interest to regulate women's work because of women's societal roles. > Set a precedent for sex differences as basis for legally based discrimination. > Contributed to feminist debate of equality v protection

what is a suspect class?

A person and his/her members who are easily identifiable, have difficulty changing their identity and have suffered a long history of discrimination against them. •Typical Suspect Classes: •Race, Religion, National Origin/Ethnicity •Strict Scrutiny is Used

Due Process Clause

Clause in the 5TH AND 14TH Amendment limiting the power of the national government; prohibiting state governments from depriving any person of life, liberty, or property without due process of law. •Government must protect all legal rights owed to a person. •Government must protect fundamental rights. •Government must follow procedural justice in criminal proceedings. •States cannot arbitrarily deny Constitutional protections to individuals or groups

Hierarchal court systems

Court cases making their way from local courts to Supreme Court. There are two paths. Content dictates path. A. State Court System State Trial Courts >Intermediate Appellate Courts>State Supreme Courts>Supreme Court Deals mostly with: Most criminal cases Most contact cases Personal Injury Family Law B. Federal Court System District courts > U.S. Courts of Appeal (Circut Courts) > Supreme Court Deals mostly with: Constitutionality of Laws Laws and Treaties Disputes Between States Bankruptcy

Contemporary Social and Legal Treatment of LGBT People In the United States

Discrimination •No federal law preventing discrimination against LGBT people •Several state and local laws are in place to protect LGBT people from discrimination •LGBT people are often discriminated against •The general public supports legal protection for LGBT people Hate Crimes •Sexual orientation and gender identity hate crimes have increased in the United States •Most states have hate crime laws •2009: Matthew Shepard and James Byrd Jr. Hate Crimes Prevent Act Employment •No formal federal law protecting LGBT people from employment discrimination. •Military Service Education •1984: Equal Access Act •Nabonzy v. Podlensky (1996) • LGBT students still face harassment and discrimination

Disparate treatment v. Disparate Impact

Disparate treatment is intentional discrimination examples : -advertising for gender specific models to show clothing -gender specific camp counselor -If only African American applicants are required to take a pre-employment assessment test. Disparate impact : often referred to as unintentional discrimination -Height and weight requirements for prison guards to provide security - If you test all applicants and only African Americans are eliminated based on the results of the assessment.

UAW v. Johnson Controls, Inc. (1991)

FACTS: •Johnson Controls, Inc. makes batteries which results in high lead exposure for employees. •8 female employees became pregnant and had high lead blood levels. •Johnson Controls, Inc. banned all women, except infertile women, from completing job tasks that included lead exposure. •UAW sued stating policy was discriminatory under Title VII. Legal ? •Does a policy barring the participation of potentially fertile and pregnant women in occupations that could be detrimental to their reproductive capacities constitute sex discrimination in violation of Title VII of the 1964 Civil Rights Act? Majority opinion: violates VII Significance: -the company's gender-specific rule was biased and inequitable because it permitted fertile men, but not fertile women, to decide whether to work in jobs subjected to lead exposure while manufacturing batteries -The court rejected Johnson Controls' argument that their policy fell under the Bona Fide Occupational Qualification (BFOQ) defense because the protection of employees' fetuses was not an essential part of the business's operation (At the time the case was heard, it was considered one of the most important sex-discrimination cases since the passage of Title VII)

Reed v. Reed (1971)

Facts of the case: •Idaho Probate Code required males be preferred over females in administering estates. •The Reeds were a separated couple who both sought to be the administrator of their deceased son's estate. Legal ? •Does the portion of the Idaho Probate Code which prefers males to females as administrators of estates violate the 14th Amendment? Majority opinion: •The code's unequal treatment on the basis of sex was unconstitutional. • Violates the Equal Protection Clause of the 14th Amendment. Significance: •1st time Supreme Court used the Equal Protection Clause of the 14th Amendment to strike down a law that were discriminatory towards women.

Onacle v. Sundowner Offshore Services (1998)

Facts: male workers repeatedly sexually harassed by other male workers -sued the company for not preventing or addressing the sexual harassment in the workplace district court ruled Title VII was not applicable Legal Q: -does the prohibition of sex discrimination in Title VII apply to same sex sexual harassment Majority rule: Yes significance: - expanded scope of Title VII to include same sex harassment -seen as a cornerstone ruling for future title Vii sexual harassment claims

Rosker v. Goldberg (1981)

Facts: •1980-President Jimmy Carter reactivated draft registration process •Only males were required to register for draft •Several men challenged the constitutionality of the draft Legal ?: •Does the requirement that only males register for the draft violate the Due Process Clause of the 5th Amendment Majority opinion: (6-3) -did not violate due process clause -Combat restrictions meant men and women are not "similarly situated" Significance: •Clear application of intermediate scrutiny •Reinforced use of gender discrimination within the military

Price Waterhouse v. Hopkins

Facts: •Ann Hopkins is denied partnership at accounting firm. •Claims that denial is based on employer's evaluation that she does not meet the standards for female employee behavior. •She often outperformed men. •Both district court and court of appeals ruled in favor of accounting firm. Legal ? •Did refusing to promote Hopkins in violation of Title VII as a form of sex discrimination? Majority opinion: 6-3 decision yes, Hopkins was subject to gender discrimination Significance: •Established that gender stereotyping is a form of sex discrimination. •Established the mixed motive framework.

California Federal Savings & Loan Association, et al. v. Guerra (1987)

Facts: •CA Fair Employment and Housing Act (1978) requires employers to provide female employees an unpaid pregnancy leave of up to four months and reinstatement. •Lilly Garland took leave from work while pregnant and didn't not get her job back. •Filed suit citing violations under Pregnancy Discrimination Act. •Employer, California Federal Savings and Loan, argued the CA Fair Employment and Housing Act was unconstitutional. Legal ?: •Does the CA Fair Employment and Housing Act, prevent employers from complying with Title VII, which requires employers to extend benefits to pregnant women that they do not already provide to other disabled employees? Majority response: the California law is not in conflict with the PDA Significance: •Sets precedent for pregnancy to be seen as special and protected class. •Sets precedent for lower courts to determine legality of other pregnancy protective laws that extend beyond the minimum limits set by the PDA. OVERALL, GUERRA WON BECAUSE CALIFORNIA LAW OVERRIDES THE EMPLOYER -STATE LAW OVERRIDES FEDERAL IN THIS CASE

Johnson v. Transportation Agency (1987)

Facts: •In Santa Clara, CA the transportation agency promoted a woman to road dispatcher over a man. •Both the male and female candidates were equally qualified. •As a "tie-breaker" the agency used sex to determine hiring preferences between two equally qualified candidates. ( AFFIRMATIVE ACTION) Legal ? : •Did the agency's use of sex in making hiring and promotion decisions violate Title VII of the Civil Rights Act of 1964 Majority opinion: 6-3 no. the court found the hiring and promotion procedures of the agency to be legal Concurring opinon: •Agreed with decision but believe a different evaluation measure should be used. Dissenting opinon: •Legalized discrimination Significance: •Set precedent that affirmative action programs did not violate Title VII

Frontiero v. Richardson (1973)

Facts: •Male US Air Force service members could automatically get dependent benefits for their wives •Female US Air Force service members had to prove their husbands were "dependents." (male members automatically got wives benefits but women members had to apply to get husbands benefits - case assumed men make more $ than women so men did not need benefits from Air Force) Legal ? : •Did the Air Force policy unconstitutionally discriminate against women thereby violating the Fifth Amendment's Due Process Clause? Majority opinion: •Found military policy unconstitutional. •Strict scrutiny should be used in gender discrimination case. Summary of Concurring opinion: •Law was unconstitutional •Did not meet standard for strict scrutiny to be used in gender discrimination cases. •Stewart: Generally believed it was unconstitutional. Summary of dissenting opinion: •Not sex based employment discrimination Significance: •Established the concept/need for "intermediate scrutiny" •Expanded the scope and power of legal protections against sex based employment discrimination

Weaver v. Nebo School District et al (1998)

Facts: •Wendy Weaver was a teacher and volleyball coach who publicly disclosed she was gay. • The school district removed Weaver as a coach and told her not to speak of her sexual orientation. Legal ? : •As a public employee, did Nebo School District, deny Weaver's equal protection of her First Amendment rights? Decision: - was a violation of first amendment rights -weaver was allowed to return to coaching job -violation of equal protection clause Significance: •One of the best know cases about gay and lesbian teachers in the United States. •Has been referenced in other cases about discrimination against public employees.

Witt v. Department of the Air Force (2008)

Facts: •Witt, a woman who had same sex relationships, was a military member who never openly disclosed her sexuality at work •She was outed by another person (not in the Air Force) •She was suspended from the Air Force during the investigation and subsequently honorably discharged. • Case dismissed from District Court Legal ? •Does Don't Ask, Don't Tell violate: •violate a constitutional right to privacy? •substantive due process and procedural due process? •the Equal Protection Clause of the 14th Amendment? Case dismissed from District Court and sent to Circuit Court who sent it back to district court: -No violation of Equal Protection Clause but... Did her dismissal violate her right to due process? Ultimately, District Court determined Intermediate Scrutiny used with DATA dismissal claims -Weakened DADT

Kahn v. Shevin (1974)

Facts: - widows get a $500 tax exemption •Widower, Mel Kahn, applied for exemption and was denied because he was not a widow. •Circuit court ruled in his favor. Violated 14th Amendment Equal Protection Clause. •Florida Supreme Court reversed decision. Legal ?: Does the Florida statue that only provides property tax exemptions to widows (women) violate the Equal Protection Clause of the 14th Amendment? Majority answer: No (6-3) Dissenting opinon: •Need to use strict scrutiny •Discrimination is not justified •No significant justification for gender based on discrimination is evident. Significance: •Set a new precedent about treatment of gender under law •Strong example of policy based in substantive inequality

Harris V. Forklift systems (1993)

Facts: -Harris claimed her employer sexually harassed her -sued claiming under Title VII the sexual harassment created an abusive work environment -employer said the harassment was not intense enough to affect the employer or workplace Legal ? -what level of severity must sexual harassment be to be considered a violation of title VII Majority: -lower lvl courts focus on psychological harm was incorrect (focus should be on work place atmosphere) -employers behavior violated title VII

first amendment

Freedom of speech, assembly, religion Separation of church and state, freedom of expression •"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." •Ensures people's rights to hold, express, and share their thoughts, values, opinions without government infringement.

Equal Protection Clause

Governing body must treat one individual the same as others in similar circumstances Basis of anti-discrimination laws and civil rights laws •States can deny individuals or groups equal protection of the law

laws and social norms

Laws- rules which govern society. A codified version of norms that provide a legal precedent(means?) to punish or protect people in a society Social Norms- informal rules learned by living in society. Dictates what is socially acceptable or not Which comes first? Should laws inform social norms or should social norms inform laws?

Title IX

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance

How has the Supreme Court acted as a policy maker in regards to legislation about gender and sexuality law?

Over time they have shaped the law, sometimes good sometimes bad Bad: Muller v state of oregon Good: United States v Virginia

stonewall uprising

Police raid the stonewall inn Results in protests and riots from LGBT community and allies, Considered to be the start of the LGBT movement 20th century LGBT rights movement

Substantive Due Process v. Procedural Due Process

Procedural Prevents the government from infringing on rights without due process/fair trial Fair procedures before depriving people of fundamental rights Substantive a principle allowing courts to protect certain fundamental rights from government interference

civil rights act of 1964 (Title VII - title 7)

Prohibits discrimination in privileges of employment based on race, color, religion, sex, or national origin Employers may not discriminate in compensation or terms and conditions of employment based on: Sex, religion, color, race or national origin Protects against 2 types of employment discrimination Disparate treatment Disparate impact

What is the public sphere and why is legislation about gender and sexuality in the public sphere important?

Public sphere: Anything outside the home, school, work etc. -Legislation dictates how individuals (LGBTQ or not) interact and communicate in public sphere -Women/ LGBTQ historically excluded from public sphere, need representation - gay men act differently in work environments compared to private life

Quid Pro Quo v. Hostile Environment sexual harassment

Quid Pro Quo : when employer wants sexual favor in exchange for promotion/ get benefits/keep a job/ advance Hostile Environment: employer created an intimidating and hostile environment due to intimidating sexual manner

19th Amendment (1920)

Ratified on August 18, 1920, prohibits any United States citizen from being denied the right to vote on the basis of sex. -gave women the right to vote

How does formal equality and substantive equality differ from each other both theoretically and In regards to policy?

Substantive -focuses on recognizing differences between the 2 genders (Remedying the effects of past discrimination, affirmative action) Formal -focuses on equality no matter what

formal equality

The idea that all individuals have the same legal and political rights in society. Immutable characteristics cannot be taken into account Equality of opportunity (not outcome)

According to the reading in Women's Rights in the USA, Policy Debates and Gender Roles by McBride and Parry, _________________ of the Civil Rights Act of 1964 prevented employment discrimination on the basis of sex.

Title VII

True or False. According to the reading in Women's Rights in the USA, Policy Debates and Gender Roles by McBride and Perry, the type of evidence needed to prove that an employer has committed sex discrimination has evolved since the passage of the Civil Rights Act of 1964.

True

The Equal Access Act (1984)

a United States federal law passed in 1984 to compel federally funded secondary schools to provide equal access to extracurricular student clubs. - advocated for by Christian groups who wanted to ensure students the right to conduct Bible study programs during lunch and after school, also essential in litigation regarding the right of students to form gay-straight alliances;and to form groups focused on any religion or on secularism.

The Family Medical Leave Act (1993)

a United States labor law requiring employers w/ more than 50 workers to allow up to 3 months of unpaid leave for qualified medical and family reasons. - gave employees the right to return to work after 3 months But, -act only covers employees who have worked for the employer for 12 months and for 1250 hours in the year before they leave - Only ½ of workers are technically covered by this act - Many cannot afford to take the full leave

Nabonzy v. Podlensky (1996)

a case heard in the United States Court of Appeals regarding the protection of a school student in Ashland, Wisconsin, who had been harassed and bullied by classmates because of his sexual orientation. - plaintiff sought damages from school officials for their failure to protect him from the bullying.

Substantive Equality

a fundamental aspect of human rights law that is concerned with equitable outcomes and equal opportunities for disadvantaged and marginalized people and groups in society. •Substantive equality uses policies and laws to reverse effects of past discrimination and reshape societal norms and expectations. •Political Views of Equality: •Everyone should be treated in a similar manner. •When people exist in the same social, political, and economic conditions. Substantive equality and gender and sexuality: In society men and women as well as sexual minorities are situated differently Remedy for past effects In the u.s women and sexual minorities have been excluded from certain opportunities

Lilly Ledbetter Fair Pay Act of 2009

a law enacted by Congress that bolstered worker protections against pay discrimination. The act allows individuals who face pay discrimination to seek rectification under federal anti-discrimination laws - ensures women and other victims of pay discrimination can effectively challenge unequal pay

concurring opinon

a signed opinion in which one or more members agree with the majority view but for different reasons

Major legal milestones for women

a. 19th amendment b. legal protections for reproductive choices- right to legal/safe abortion, birth control, and education c. civil rights act of 1964 (Title VII) d. pregnancy discrimination act of 1978 - prohibits discrimination on the basis of pregnancy e. Title IV f. Violence against women act

Bona Fide Occupational Requirement

allows employers to hire individuals based on their age, sex, race, national origin, or religion, if these specific qualifications are considered essential to the job, or considered vital to the business' operation (This is important to the study of gender, sexuality, and the law because this is a legal exemption to nondiscrimination laws.) •An employer can discriminate on the basis of sex if they can prove that sex is a bona fide occupational qualification.

According to the reading in Women's Rights in the USA, Policy Debates and Gender Roles by McBride and Parry, the _____________________________ states that employers may not pay employees of opposite sexes different rates for the same work. a. Gender Parity in Wages Act of 1956 b. Equitable Income Act of 1960 c. Equal Pay Act of 1963 d. Formal Equality in Employment Act of 1970

c. Equal Pay Act of 1963

According to the reading in Women's Rights in the USA, Policy Debates and Gender Roles by McBride and Parry sex discrimination in employment hiring is permissible if it _______________.

c. fulfills a bona fide occupational qualification

United States v. Virginia (1996)

facts: •Virginia had a public, male only, military college, The Virginia Military Institute •US sued Virginia and VMI, citing its sex discrimination was in violation of the 14th Amendment Equal Protection Clause •Saw a back and forth in appeals, with Virginia proposing to create an alternative program for women: Virginia Women's Institute for Leadership Legal ?: •Does Virginia's creation of a only women's military college, satisfy the 14th Amendment Equal Protection Clause? Majority opinion: (7-1) male only admission is unconstitutional (Under a review of heightened scrutiny, the VMI and VWIL were not equitable) •Dissent (Scalia) •Seemed court was using strict scrutiny not intermediate scrutiny •It should be the job of a democracy not the courts to change laws and institutions Significance: • Significance: •End to male only military academies •Clear opinion of the Supreme Court on the constitutionality of gender inequality in education

dissenting opinon

is an opinion in a legal case in certain legal systems written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment.

Types of laws : statutes

law enacted by a legislature -specific and regulatory laws (national/ federal level)

Personnel Administrator of Massachusetts v. Feeney (1979)

summary: •A district court ruled that a MA law which gave veterans employment preferences was a form of sex discrimination as it disproportionately benefitted men and hurt the employment opportunities of women. Legal ? : • Are laws which create outcomes that disproportionately impact one group in the population unconstitutional? • Is knowledge that a law would have a discriminatory impact sufficient enough to prove discriminatory purpose? •Does the hiring practice that favors veterans violate the 14th Amendment? Majority answer: no. The language of the law is gender neutral, therefore it is not discriminatory. •Summary of dissenting opinion: •Marshall and Brennan: Doesn't matter the gender neutrality of the language or intent, if the effects are discriminatory it is unconstitutional. •Significance: •Show limits of formal equality and legislation to counteract gender inequalities in the workplace.

burden of proof

the defendant has to proof that there's more than a 51% chance that the plaintiff is guilty The burden is the preponderance of evidence standard. Essentially whether there is a 51% chance, or that it is "more likely than not" that the defendant either did or did not inflict injury on the plaintiff

Women's Armed Services Integration Act (1948)

• Key components of Act: • Makes women permanent part of military • Extends veteran benefits to women • Prohibits women from combat positions in Navy and Air Force • Limited mother's involvement • Limits percentage of women serving •2% enlisted •10% officers

14th amendment

•All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. - EQUAL PROTECTION UNDER THE LAW, GOVERNMENT CANNOT TAKE AWAY FUNDAMENTAL RIGHTS

fundamental rights

•Certain rights and liberties citizens are intitled to and protected by the Constitution •Some explicitly listed... •Right to expression, right to assembly, right to bear arms, right to property, right to life, right to liberty Some implied.... •Marriage, privacy, contraception, interstate travel, procreation, child custody, voting

3 different types of discrimination

•Disparate Treatment: •People cannot be treated differently because of race, sex, religion, or national origin •Disparate Impact: •Legislation cannot intentionally disproportionately impact one group more than others. •Unintentional, Disparate Impact: •Several laws do not mention sex or gender, yet the effects of those laws overwhelmingly effect one particular identity group. •Treated differently by the Supreme Court under formal equality.

The equal pay act (1963)

•Employers must pay women and men equal pay for equal work. •Equal work: •"jobs the performance of which requires equal skills, effort, and responsibility" •One of the first laws to remedy gender discrimination in the work place •Early 20th century: women are 25% workforce •1960: women earn 2/3 less than men • Act requires that different job titles that hold the same duties and require the similar qualifications and efforts be paid the same. •Act requires that different job titles that hold the same duties and require the similar qualifications and efforts be paid the same. - under JFK -one of the first laws giving women a voice over inequality in the workplace

Equal Employment Opportunity Commission (EEOC)

•Federal agency that enforces Title VII •Issues guiding regulations for employees to interpret Title VII. •People typically must file complaints with EEOC before they can bring a lawsuit.

Current Protection of Private Employees

•First Amendment rights are not protected in places of private employment. •Private employees can engage in at will employment. •An employer can fire an employee for any reason as long as it does not violate terms of a contract, collective bargaining agreement, or applicable discrimination law.

scrutiny

•Hierarchy of standards that courts used to determine which is more important: a constitutional right or government's interest. •Used by the Supreme Court when evaluating discriminatory law •Guides how Court will analyze laws and the laws' effects •Determines if government or challenger has burden of proof •Levels of scrutiny is a means -end analysis •Ends: The government's reason for creating the law •Means: The methods utilized in the law to achieve the "end"

Craig v. Boren (1976)

•In Oklahoma, women over the age of 18 could purchase beer but men under 21 could not. Did Oklahoma law violate the 14th Amendment's Equal Protection Clause by establishing different drinking ages for men and women? - yes, majority opinion (7-2) •Unequal gender treatment without an important reason. • Creation of intermediate scrutiny. •Summary of concurring opinion: •Agreed with decision but wanted a higher level of scrutiny •Summary of dissenting opinion: •Burger and Rehnquist: felt law only needed to pass the rational basis test Significance: •Helped establish a precedent for use of intermediate scrutiny •Started the conversation about the place and purpose of stereotypes in law •Created discussion about gender and protected groups

Current Protections of Public Employees (LBGT people)

•LGBT people employed in the public sector have better protection against discrimination than people employed in the private sector. •14th Amendment and Equal Protection Clause •Civil service protection

Discriminatory laws

•Laws where the outcome of the law will result in differential treatment for a subgroup of a population. •Discrimination is permissible in law. •Age (certain cases), bona fide occupation qualifications(allows employers to hire individuals based on their age, sex, race, national origin, or religion), reasons not protected under law, compelling government interests. •Discrimination in law is not permissible when... •Denies fundamental rights •Targets a suspect class (race, religion, national origin, citizenship status) •Immutable characteristics (race, gender, disability) •Unless the law serves a compelling government interest

Intermediate Scrutiny

•Legal standard for determining if any type of sex discrimination is constitutional. •Government has burden of proof. •The End: •Courts must have found an important interest to discriminate on behalf of the government. •The Means: •Use of discrimination must be substantially related to achieving goal.

Rational Basis Test (Minimal Scrutiny)

•Legal standard for evaluating if all other types of discrimination are constitutional. •Challenger has burden of proof •The End: •Courts must have found a legitimate or valid interest to discriminate on behalf of the government. •The Means: •The law must be conceivably rational

Supreme Court and Interpretation of Title VII

•Major legal question: Does Title VII of the Civil Rights Act of 1964 have the ability to protect people from employment discrimination based on sexual orientation (the fact being heterosexual, homosexual, or bisexual)? Supreme Court: -agreed to hear 2 cases about interpretation of Title VII 1. Sexual Orientation: Does firing some due to sexual orientation violates Title VII? •Altitude Express, Inc. v. Zarda 2. Gender Identity: Firing someone due to gender identity violate Title VII? •Harris Funeral Homes v. EEOC •Defining if it is a form of "sex stereotyping" or due to transgender status,

Legal basis for formal equality : civil rights act of 1964

•Prohibited laws that discriminated against based on race, ethnicity, religion, or sex. •Title VII gave employment protection on the basis of sex. •The extent of the law became stronger over time.

Employment Non-Discrimination Act or Equality Act

•Proposed US Congress legislation prohibiting employment discrimination due to gender identity or sexual orientation for employers with at least 15 employees. •Introduced in almost every Congress since 1994 •Historically never passed in either branch of Congress. •5/2019: Passed in House of Representatives

Substantive Equality Biological Differences:

•Recognition that men and women are biologically different. •pregnancy, childbirth, and motherhood •Goal: achieve equality through policies that minimize this biological disadvantage in society.

right to privacy

•Restraint on government for intervening with the private and intimate life of individuals. •Never explicitly granted in Constitution. •1st, 3rd, 4th, 5th Amendments basis for justification. •Enforced through Due Process Clause.

"Decision Making In A Democracy" (Dahl 1957) Dahl's question : What is the role of the Supreme Court in the U.S political system ?

•Supreme Court is more than just a legislative interpreter •Supreme Court has to take vague laws and make controversial decisions •Supreme Court is the protector of minority groups •Supreme Court ensures political equality and fundamental rights •All this OK because the Supreme Court is not often at odds with national majority •Supreme Court's greatest policy making power is its legitimacy

Single sex school today

•The United States has seen an increase in single sex schools and classrooms since United States v. Virginia (1996) •2001, No Child Left Behind Act •2006, Department of Education reinterpretation of Title IX

constitutional law

•The interpretation and implementation of the Constitution. •Constitutional law is applicable at both the state and the national level. • example : The Supremacy Clause and the 14 th Amendment.

Judicial review

•The power of the Supreme Court to review state and federal laws, as well as other legally binding agreements and documents, and determine its constitutionality. •Marbury v. Madison (1803) first Court case in which judicial review was utilized.