Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, May 6, 2014

Moving Beyond Anti-Stereotyping Sex Discrimination Theory

Barbara Stark has written, State Responsibility for Gender Stereotyping,17 J. Gender, Race & Justice 333 (2014)

Scholars have recently re-discovered Justice Ruth Bader Ginburg’s early anti-stereotyping work. As Cary Franklin notes, Justice Ginsburg’s approach "was grounded not in a commitment to eradicating sex classifications from the law, but in a far richer theory of equal protection involving constitutional limitations on the state’s power to enforce sex-role stereotypes." Some of these scholars believe that this approach holds great promise for issues at the "frontiers of equal protection law" such as same-sex marriage and the work-family conflict. As Ginsburg herself has come to realize, however, anti-stereotyping is only the beginning. This Article explains why anti-stereotyping is insufficient, what else is needed, and why the Constitution cannot be relied upon to provide it. It explains why the International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW or Women’s Convention) is far more promising. The Article concludes that CEDAW’s bar on stereotyping is not only better for women than the Constitution’s grant of equal protection, but better for men as well.

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