Friday, April 3, 2020
Elizabeth Sepper, Sex Segregation, Economic Opportunity, and Roberts v. U.S. Jaycees, 28 William & Mary Bill of Rights J. (2020)
This symposium on the intersections, synergies, and conflicts between rights largely focuses on constitutional rights and their relationships in judicial decisions. From this perspective, Roberts v. U.S. Jaycees—and the issue of sex-segregated clubs more generally—stands at the intersection of First Amendment rights to association, expression, assembly, and privacy. But rights construction, or dynamism, is not so neatly bounded by the Constitution.
In this essay, I argue that what was dynamic and synergistic in Roberts was not the Jaycees’ constitutional interests, but rather women’s statutory rights to economic opportunity and to equal membership. Litigation came to set mere statute against constitutional freedom of association. But the statutory and cultural commitments of the time influenced the construction of those constitutional rights. In a decade-long movement culminating in the Supreme Court, working women, local Jaycee chapters, and feminist groups forged connections between legal frameworks—federal and state, statute and constitution—that the law holds separate. Public accommodations equality under state statutes coalesced with landmark employment law protections under the Civil Rights Act of 1964.
The movement shifted public discourse and, eventually, governmental and judicial perspectives from unexamined acceptance of a pervasively sex-segregated public to the integration of clubs once thought private. It highlighted dual harms of the U.S. Jaycees’ treatment of women—an affront to fair play in the business world and the maintenance of gender hierarchy within the organization and society-wide. Justice O’Connor’s noted concurrence and Justice Brennan’s majority opinion respectively adopt these frames. Although the Jaycees might seem a relic of a time long past, the social and legal movement leading to the Supreme Court proves relevant for ongoing debates about the permissibility of segregated organizations, the emergence of #MeToo, and the tactics of effective social movements.