The Future of Sex Discrimination Law in Cases of Pregnancy and Sport

Katharine K. Baker, Gender (Discrimination) Trouble, South Carolina L. Rev. (forthcoming)  

The LGBTQ civil rights movement has upended traditional understandings of what it means to be male or female. Building on this movement’s achievements, a growing number of scholars have urged that the goal of sex discrimination law be to question when, if ever, the law can make distinctions between men and women. This article pushes back against these claims. Even though what it means to be male or female is now much more contested both socially and legally, sex discrimination law always has and always will have to grapple with the normative dilemmas posed by treating those who have traditionally female anatomy differently than those with traditionally male anatomy.

To illustrate this point, I examine two sex equality stories that have rarely been told together: pregnancy in the workplace and sport in educational institutions. Pregnancy discrimination law has often rejected different treatment for those with female anatomy; in contrast, the major federal law dealing with sex discrimination in sports, Title IX, is premised on recognizing female sports as different from male sports. For those who believe that sex equality efforts should challenge all legal distinctions between men and women, the history of pregnancy and sports offers a cautionary tale. The drive to diminish the significance of anatomical differences has produced a system of legal protections for pregnant workers in the United States that is conspicuously lacking. The substantial rise in female participation in sport under Title IX, on the other hand, has been a resounding success. The history of pregnancy and sport shows that the future of sex equality lies not in abandoning sex distinctions but in creating doctrine and laws that recognize their risks but also accept their benefits.