Gender

It is important to understand gender as different from sexuality. Sexuality concerns physical and biological differences that distinguish males from females. Cultures construct differences in gender. These social constructions attach themselves to behaviors, expectations, roles, representations, and sometimes to values and beliefs that are specific to either men or women. Gendered differences—those that society associates with men and women—have no necessary biological component. Instead of biology, socially agreed upon and constructed conduct, and the meanings cultures assign to that conduct, constitute the area of gendered difference.

Labels of ““essentialism”” can attach themselves to arguments that gender and sex have an inherent relationship. However, a cultural essentialist, who is interested in issues of gender, may argue that a historical relationship exists between gender, a culture's experience, and its public identity and representation that is so pervasive and so intimate that it seems nearly inherent.

The study of gender in African American literature considers the way in which the texts of black writers have distinctive and unique expressions in men and women writers. Critical and theoretical studies may explore the consequences of gendered identity upon the structure, theme, or style of African American texts. The historical development of these textual markers of gender across the tradition of the literature may also be a focus. Cultural essentialism has some place in such studies because African American literature has a racial identity. Discussions of gender and racial identity provoke vigorous argument because socially constructed differences are a matter of debate and discrimination and because essentialism of any design holds a pejorative context among many theorists.

In the 1960s and 1970s, the insistent surge of the civil rights movement and Black Power movement into the political fabric of life in the United States made the issue of race and its political and social stratifications the signal cultural issue for these decades. Dramatic political activity within the women's movement during the same era eventually matched the intensity of the critical attention to race. Contention surrounds the attention garnered by each agenda. Many identify white women as the women's movement's targeted beneficiaries. In an often competitive play for power and visibility, white women arguably shadowed and dominated the movement for racial equity and authority. Notably, contemporary reflections on the civil rights and Black Power movements launch equally critical challenges to the masculinist authority of these organizations.

Among the most significant and prolific in establishing the cultural text of gendered studies has been bell hooks in her penetrating analyses of culture and gender. In Ain’t I a Woman (1981) hooks established the parameters of the debate asserting that conversations about black people “tend to be on black men; and when women are talked about the focus tends to be on white women.” Hooks returned to this forceful declaration of the frames of the eventual debate in Feminist Theory from Margin to Center (1984), a conversation about radical social and political change that obligated a confrontation with intersecting dynamics of gender constructions and cultural identity. Her work vigorously engages the complicated spheres of power within the domains of race, class, and feminist thought and in many ways is a disciplinary standard and touchstone for contemporary cultural studies.

Given the national political conversations and confrontations of the latter half of the twentieth century, where the rights of those on the margin—women and people of color—have determined a national discourse, it would have been difficult to emerge from this era without the coalescence of these dual issues of race and gender. Consequently, the activity of the women's rights, civil rights, and Black Power movements anticipate the eventual turn to a critical focus on black women.

As social and political scientists looked critically at the activity of the women's rights and Black Power movements, literary critics and theorists turned their attention to the intersection of race and gender in the literary tradition of the United States. Prior to this historical moment, the study of the African American tradition largely concerned the history and development of its cultural presence and identity within the American literary tradition. In other words, ““difference””—as a critical category—focused on the difference of race. Initially, literature's critical studies focused on determining the ways that race and gender revealed significant differences in the writing of African American women.

Even though critical studies did not directly address gender construction in African American literatures prior to the twentieth century, it would be a mistake to assume that these cultural representations were not an expressed concern in the individual works of creative writers and scholars. Frederick Douglass, for example, certainly made it clear that he understood the differences of gender in his narrative and in ““The Heroic Slave”” (1853). Contemporary scholars have noted the rigidity in men's and women's identities in his autobiography and the troubled associations these rigid constructions enured. Similarly, women writers such as Harriet E. Wilson, Julia A. J. Foote, and Frances Ellen Watkins Harper made the difficulties of women's gender a focus in their works and underscored how it often constrained their struggles for equity and respect. In other words, although an intertextual collaboration of gender issues was neither the means nor the focus of scholarly critique prior to the mid-twentieth century, individual writers certainly made it clear that gender identities were part and parcel of the struggle for equity in African American cultures.

Issues of ““manhood”” and the challenges that U.S. culture presented to black males are evident in the literature of William Wells Brown, Martin R. Delany, W. E. B. Du Bois, Charles Waddell Chesnutt, and James Weldon Johnson. Ralph Ellison, Richard Wright, and Claude Brown made men's and boy's lives a thematic focus in their works prior to the theorizing of gender constructions that characterizes the turn of the century and the end of the millennium. Similarly, dilemmas of ““womanhood”” clearly complicate the fiction and prose by Jarena Lee, Harriet A. Jacobs, Ida B. Wells-Barnett, and Sojourner Truth, as well as Jessie Redmon Fauset, Nella Larsen, Zora Neale Hurston, Lorraine Hansberry, and Gwendolyn Brooks. All of these writers’ works, and a host of others, create the body of literatures that is the focus of contemporary critical studies of gender.

Although, as noted, these first critical studies focused on black feminism, the end of the millennium finds a parallel interest in representations of a black masculinist presence in the arts, literature, and popular cultures of the United States emerging as a sustained and coherent critical project.

Since the 1970s and through the early 1990s, the popularity of women's writing and issues of feminist theory have been at the fore of gendered studies in literature. However, because feminist politics did not initially demonstrate concern for issues of race and culture, it was necessary for literary study to address this absence as it focused on black women writers.

In the preface to In Search of Our Mothers’ Gardens: Womanist Prose (1983) Alice Walker argues for a ““feminist of color””—a ““womanist”” for whom culture and gender are both essential. Although this was likely not her intent, Walker's term ““womanist”” underscores the tension between the feminist agendas of a woman's movement that was initially inattentive to cultural difference and to black women's issues. It has encountered contestation and some debate. In Talking Back (1989), bell hooks argues that “womanism” does not engage the dynamics of radical and transformative political struggle and change. Others argue that its separatist agenda underscores potentially divisive problematics of race in gender studies. In this latter sense, womanism has a clearly historical evolution as it calls for attention to the discrete cultural issues of the tradition that do not only implicate gendered differences. In some ways, it may even be considered as a response to Barbara Smith's 1977 argument in what is widely held to be the generative essay for critical attention to women writers in the African American literary tradition.

In that 1977 essay, ““Toward a Black Feminist Criticism”,” Barbara Smith writes that the “politics of sex as well as the politics of race and class are crucially interlocking factors in the works of Black women writers” (emphasis added). Smith's essay provoked great controversy in the emergent studies of black feminism. Her arguments concerning a black woman's language and cultural experience that were evidence of “an identifiable literary tradition” seemed problematically essentialist to many readers. What is a black woman's language? How does language indicate a gender and a culture? Do all black women writers ““inherently”” (i.e., biologically) use this language? These difficult questions raised within the essay's thesis were not, however, its most debatable aspect. More bothersome to some was Smith's insistence on bringing a black female lesbian voice into the discourse of black feminism. Smith's thesis concerned both gender and sex, and for each of these differences the issue of culture was critical. At this point in the developing field of black feminist literary studies, the complications and controversies inherent to the intersecting relationships of culture, sexuality, and gender were riveted to its disciplinary identity. Of these issues, culture and gender have received the most sustained academic study.

A pivotal anthology for the development of and attention to black feminist criticism preceded Smith's essay. Toni Cade Bambara's The Black Woman (1970) gathered prose and poetry of black women writers of the era and forced a focused consideration of their presence in American arts and letters. Bambara's work lay the ground for the 1982 publication edited by Gloria Hull, Patricia Bell-Scott, and Barbara Smith—All the Women Are White, All the Blacks Are Men, But Some of Us Are Brave. This text would fix a disciplinary home-place for black women's studies in the academy.

Both the archival projects of critics and theorists’ figurative constructions of a poetics of women's writing find distinctions that are apparent and consistent in the voice, structure, and language of African American women writers’ texts. Issues of language have a discrete configuration in black women writers according to the work of several theorists, including Mae Henderson's “Speaking in Tongues: Dialogics, Dialectics, and the Black Women Writer's Literary Tradition” (in Changing Our Own Words, ed. Cheryl Wall, 1989), Houston A.Baker, Jr.'s Workings of the Spirit: The Poetics of Afro-American Women's Writing (1991), and Karla Holloway's Moorings and Metaphors: Figures of Culture and Gender in Black Women's Writing (1992). Hazel Carby's Reconstructing Womanhood: The Emergence of the Afro-American Woman Novelist (1987) reconstructs the cultural history “of the forms in which black women intellectuals made political [and] literary interventions” in their social domains. Roseann Bell, Mari Evans, Gloria Wade-Gayles, Barbara Christian, Joanne Braxton, and Andree McLauglin, Henry Louis Gates, Jr., and Cheryl Wall explore generational continuities of thesis, character, and language as well as complex intersections of these issues in the literature of nineteenth-and twentieth-century women writers in rich and provocative critical essays. Finally, the 1988 publication of The Schomburg Library of Nineteenth-Century Black Women Writers—a project of massive archival documentation and recovery—places back into print heretofore lost volumes of African American women writers. The Schomburg Library collection stands as testament to the scholarly interest in African American women's writing and to the significant and perceptive initiative of Bambara's The Black Woman.

As in the developmental history of black feminism, the intersection of race and gender in U.S. sociopolitical discourse is also the likely impetus for the late-twentieth-century focus on black male writers. A critically significant moment in this encounter was the 1994 New York City exhibition at the Whitney Museum of American Art—Black Male: Representations of Masculinity in Contemporary American Art. The Whitney exhibit honed in upon this discourse as it indicated, through its collective and eclectic sweep, the newly pervasive subjectivity of the black male. Black Male, the exhibit catalog, brings together what seem to be disparate aesthetic commentaries regarding black male representations—from visual art, film, music, literature, and popular culture. The collagelike structure of both the exhibit and the catalog make it apparent that the ““invention”” of the black man, in public cultures and in private literary/artistic cultures, is a force that dramatically patterns the history and progress of America's racial and sexual stereotype of black masculinity.

To some degree, the sustained interest in black women's writing has been a provocative agent in the recently focused attention on black male writers. In a gendered critique that represented vigorously negative assessments of their work, some black male writers and critics launched bitterly aimed diatribes against black women writers and the attention, celebrity, and publishing opportunities lavishly available to them. Ishmael Reed, Charles R. Johnson, David Bradley, and Stanley Crouch have been among the most vocal. These writers and critics present what they identify as the selective politics of corporate publishing decisions. Their contentions? First, that black feminist politics have made the contemporary works of black male writers, especially in the 1970s and 1980s, less visible and therefore less important than the work of black women writers; and second, that black women writers’ celebrity is constructed by a parallel denigration of black males within the characterizations of their texts. Much of this debate began with the publication of Alice Walker's The Color Purple (1982)—a text in which her black male characters were read, by an American public, as being representative of an abusive black masculine ethos.

However, of more significance than the factional and fracturing disputes about publishing and celebrity are the issues that emerge once expressions of black male cultures come under critical and theoretical scrutiny. Critical interest in individual male writers’ characterizations, themes, and issues has not been absent from literary studies of the tradition. Although Edward Margolies's 1968 Native Sons critically studies sixteen twentieth-century ““Negro American Authors”,” all of whom are male, his is not a gendered study. The male collective of Margolies's anthology of essays expresses selective bias rather than critical methodology. There is a similar absence of intertextual gendered study in Charles Johnson's 1988 Being and Race: Black Writing since 1970. Following an impressive and widely ranging discussion on the philosophy of being and its expressive impact on race, fiction, and novelistic form, Being and Race has two sections: ““The Men”” and ““The Women”.” However, despite the promise of these categorical dividers, Johnson's project does not develop an intertextual conversation concerning thematic exchange or stylistic patterns that are consistent in black men's literature nor does it concern the collective effects of gendered issues in black male writing.

A gendered critique of the literary and intellectual history of African American writing would address lingering issues and questions about the male writers of various eras in the tradition and the male-identified gender associations within those literary periods. Hazel Carby's study accomplishes such a perspective for women novelists. However, critical studies have yet to address, in a sustained manner, questions that concern male writers and their works. In what ways does gender identify the earliest writing of enslaved Africans in America? Why is protest literature male identified? What differences and critical perspectives do gendered studies of the Black Arts Movement reveal? Does the writing from the era known as Black Aesthetics contradict the sexism of the Black Power movement or does it reify those stereotypes?

In the 1990s, interest in the study of gendered intertextualities that focus exclusively on representations of males seems to bear some relationship to a contemporary swell in autobiographical writings by contemporary African American men. This literature, creatively expressed in a variety of personal narrative forms (autobiography, biography, memoir, and reflection), forces a sustained attention to the shared experiences of black male bodies in the United States and to the visceral qualities and exchangeable expressions of those experiences in writers from the beginnings of the tradition to the present. Within this frame, early writers such as Martin Delany and Frederick Douglass, turn-of-the-century authors such as Charles Chesnutt and James Weldon Johnson, the protest literature of Richard Wright and Ralph Ellison, the public courage and challenge recorded in The Autobiography of Malcolm X (1965) as well as the quietly courageous, yet fiercely intimate passion of John Edgar Wideman' Fatheralong: A Meditation on Fathers and Sons, Race and Society (1994) benefit from the discrete attention of a gendered critique. Considering the rich history of critical and theoretical work about gender and women's writing in the tradition, it is probable that the developing scholarly attention to the intersections of culture and masculinity in African American literature will follow a similar trajectory as it defines and theorizes along the lines of gender.

Representing Black Men (eds. Marcellus Blount and George Cunningham, 1995) indicates this developing trajectory. It argues that the social sciences have defined African American men as ““absences”” and therefore chooses to explore “constructions of African American masculinities as presences” in theories of the culture and its literature. Certainly the 1995 publication of Brotherman: The Odyssey of Black Men in America (eds. Herb Boyd and Robert Allen), a hefty anthology of black men's writing, echoes back a quarter of a century and recalls Bambara's 1970 publication, The Black Woman. The publication of Brotherman augurs an era when the intellectual history of the literature of African American writers, fully attentive to the cultural critique of gendered representations, comes full circle.

Bibliography

• Roseann P. Bell et al., eds., Sturdy Black Bridges: Visions of Black Women in Literature, 1979.
• Barbara Christian, Black Women Novelists: The Development of a Tradition, 1980.
• Mari Evans, ed., Black Women Writers, 1950–1980: The Development of a Tradition, 1984.
• Gloria Wade-Gayles, No Crystal Stair, 1984.
• Joann Braxton and Andree McLaughlin, eds., Wild Women in the Whirlwind: Afra-American Culture and the Contemporary Literary Renaissance, 1989.
• Cheryl Wall, ed., Changing Our Own Words: Essays on Criticism, Theory, and Writing by Black Women, 1989.
• Henry L. Gates, Jr., ed., Reading Black, Reading Feminist, 1990.
• France Smith Foster, Written by Herself: Literary Production by African American Women, 1746–1892, 1993.
• Thelma Golden, ed., Black Male: Representations of Masculinity in Contemporary American Art, 1994

Karla F C Holloway

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Dictionary: gen·der  (jĕn'dər)

1. Grammar.
   1. A grammatical category used in the classification of nouns, pronouns, adjectives, and, in some languages, verbs that may be arbitrary or based on characteristics such as sex or animacy and that determines agreement with or selection of modifiers, referents, or grammatical forms.
   2. One category of such a set.
   3. The classification of a word or grammatical form in such a category.
   4. The distinguishing form or forms used.
2. Sexual identity, especially in relation to society or culture.
3. 1. The condition of being female or male; sex.
   2. Females or males considered as a group: expressions used by one gender.

To engender.

[Middle English gendre, from Old French, kind, gender, from Latin genus, gener-.]

USAGE NOTE   Traditionally, gender has been used primarily to refer to the grammatical categories of “masculine,” “feminine,” and “neuter,” but in recent years the word has become well established in its use to refer to sex-based categories, as in phrases such as gender gap and the politics of gender. This usage is supported by the practice of many anthropologists, who reserve sex for reference to biological categories, while using gender to refer to social or cultural categories. According to this rule, one would say The effectiveness of the medication appears to depend on the sex (not gender) of the patient, but In peasant societies, gender (not sex) roles are likely to be more clearly defined. This distinction is useful in principle, but it is by no means widely observed, and considerable variation in usage occurs at all levels.

Apart from its narrow application in languages that assign masculine/feminine/neuter status to linguistic terms, gender is a category used to differentiate women and men, boys and girls, male and female, masculinity and femininity. Increased attention to gender as a category of analysis, particularly in the social and behavioural sciences, has coincided with the rise of academic feminism. The category itself has undergone many revisions over time, but is typically employed to distinguish sex from gender in the following way: there are clear biological differences (sex differences) between men and women, and those biological differences serve as the basis for the social construction of different roles for men and women (gender differences), though these may vary from one culture to the next. Although biological difference does not necessitate the roles assigned to men and women, it enables differential social relations which are then often (mis) understood to be ‘naturally’ determined by biology. Recently, this formulation of the relation between sex and gender has been challenged as endorsing ‘gender essentialism’ (see below).

Gender as sex

That men and women have different natures is an ancient idea, but in the nineteenth century it gained the epistemological authority of medicine and science as the idea became an object of formal investigation. Victorian science placed particular emphasis on what it identified as the weaker constitution of women, and fluctuated between assigning to them either through-going sexual passivity (attributed to bourgeois women) or rampant promiscuity (attributed to lower-class women and women of colour). However it was characterized in medical or biological terms, and women's nature was said to be decidedly inferior to that of men. The emergence of the science of psychology seemed to confirm women's inferiority by locating female pathology in a psychosomatic nexus. Freud is an exemplar of the view that female ‘hysteria’, characterized by a complex interweaving of physical and mental disorders, results from somatizing unfulfilled sexual fantasies. While Freud was certainly ready to admit that both men and women suffer from mental disorders, his overall approach was that the ‘anatomical differences between the sexes’ determine gender-typed psychopathologies. The rigid adherence to the biological model enforced the belief that homosexuality was pathological, as well. Sexual desire for the ‘opposite’ sex was thought to be a sine qua non of normal gender identification. The ‘mannish woman’ or the ‘effeminate man’ could only be understood as forms of deviance.

In the early twentieth century, Margaret Mead was among the first explicitly to forge a distinction between sex understood as a biological category, and sex or gender roles understood as a social category. Mead's ethnographic study, Sex and Temperament in Three Societies (1935), argued that, ‘many, if not all, of the personality traits which we have called masculine or feminine are as lightly linked to sex as are the clothing, the manners, and the form of head-dress that a society at a given period assigns to either sex.’ This prying apart of sex and gender forms the basis for feminist efforts to displace biologically based assumptions about women's inferiority and/or the ‘naturalness’ of the maternal role. For feminism, gender becomes a critical category by means of which women's degraded status can be understood and transcended.

Feminism and gender

Early (1970s) feminist sociology and anthropology sought to identify how those with female bodies are solicited into particular gender roles that are then seen as stereotypical. An explosion of research proposed both that (i) gender stereotyping occurs at all levels of social and cultural organization; and that (ii) the analytical tools by means of which different disciplines organize knowledge are themselves permeated by gender bias. Sherry Ortner (1972), for example, argued that because women's reproductive functions are associated with nature, and because nature is subordinated to culture (which is associated with men), it follows that women are assigned a status subordinate to that of men. Carol Gilligan (1982) argued that cognitive-developmental categories employed by the dominant research on moral development assumed the superiority of categorical over relational thinking. Since men are more likely to reason categorically, and women rationally, it follows that women's moral reasoning will be deemed deficient in relation to that of men. This would explain why moral authority is granted to men in both the public and the private spheres, as both the Judge and the Father. Gilligan attempted to develop an analytical framework that re-evaluated the development of women's moral reasoning in light of the particular contexts of women's experience. Thus, she juxtaposed women's ‘ethic of care’ to men's ‘ethic of justice’, and argued that the former is just as structurally complex as the latter.

Feminists made analogous claims concerning the gendered nature of the subject matters and the methodologies of other fields. Evelyn Fox Keller (1978) argued that the very terms of scientific investigation — objectivity, disinterestedness, rationality — are themselves highly invested in a masculinist regime of domination and control over nature (including women). According to Keller, the relatively small number of women scientists reinforces the genderization of science by excluding women's ways of knowing from its arena. Feminist literary theorists scrutinized the literary canon for its exclusion of women writers, and for its masculine preoccupations (the pursuit of power, women, and whales). By analyzing representations of women in literature, and by unveiling the work of women writers, feminist scholarship revealed both the gendered nature of literature and our gendered ways of reading it. These approaches to the study of gender, sometimes called ‘gender standpoint theory’, assume that women's ‘identity’ can be defined and demarcated, and that the world is constituted in unique ways by women's ‘subjectivity’.

Gender essentialism and beyond

Apart from a general conservative backlash against the disruption to business as usual, feminist critics themselves offered counterexamples to the presuppositions that seem to underlie gender standpoint theory, that is, that women are universally subordinated to men, that men and women are always differentially associated with culture and nature respectively, that nature and culture are universally distinct categories, that male and female are universally distinct categories, and finally, that the category of woman is a stable category in and of itself. Cross-cultural evidence, for example, has been marshalled to show that there are widespread differences in the ways that reproductive labour is apportioned between men and women. Other critics have demonstrated that race, class, sexuality, and ethnicity must be interposed with gender in order to account for the cultural and historical variability of social relations and subjectivities. Given the effects of racism on the distribution of material and symbolic resources, the category of woman cannot be applied univocally to white women and to women of colour. Similarly, ‘queer theory’ has challenged the assumption that gender provides a singular axis of sexual orientation. Along these lines, Monique Wittig (1991) argues that, understood in relation to the categories of sexual difference, lesbians are not women. How many genders might there then be?

Thus, revisionist accounts of gender attempt to displace ‘gender essentialism’, the view that women's experience and embodiment can be distilled into a unified form of subjectivity. Some theorists replace gender essentialism with the idea that subjectivity is not fixed by intersecting social categories (gender, race, etc.) but is ‘positional’, ‘provisional’, and ‘performative’. According to this view, the initial feminist impulse to distinguish sex and gender must be resisted because, though it attempts to break the ideological tie between the ‘natural’ and the ‘social’, it in fact reproduces the categories of man and woman at the level of the sexed body. Judith Butler (1990) argues that sex construed as a biological category is as heavily socially constructed as gender, and that biological sex itself is a gendered category. According to Butler, while feminist analysis successfully identified the social practices that produce gender as a category of identification, they have failed to see that sex itself is produced as a category that precedes gender. Butler's postmodern conception of gender draws on the assumption that nothing exists prior to systems of representation, thus it is wrong to think that gender identity is inscribed on a pre-existing sexed body. According to this view, the meanings attached to the female body as an object of scientific scrutiny are determined not just by the practices of science, but in conjunction with other cultural and economic formations, for example, global capitalism, the mass media, institutional racism, or homophobia. Gender, as such, is best seen as a heuristic category, a means of investigating the variability and contingency of our understanding of sexual diference.

— Meredith W. Michaels

Bibliography

• Fausto-Sterling, A. (1985). Myths of gender: biological theories about men and women. Basic Books, New York.
• Rosaldo, M. Z. (1980). The use and abuse of anthropology: reflections on feminism and cross-cultural understanding. Signs: A Journal of Women in Culture and Society, 5(3)

See also feminism; sex determination; sexual orientation; sexuality.

A social classification of people, attributes, and activities into categories such as male, female, and neuter. Gender is frequently based on anatomical differences between men and women, but does not necessarily coincide with them. Gender is socially and culturally determined; it is not biologically determined.

There is a strong tendency in Western cultures to indulge in gender role stereotyping, labelling certain activities and forms of behaviour as being appropriate to one sex but not the other. This stereotyping is still rife in sport and exercise; some people still regard activities such as rugby and boxing as being unladylike, while others think that activities such as dance and synchronized swimming are unmanly. Gender stereotyping has resulted in a psychological conflict among some males taking part in activities ascribed as feminine, and among females taking part in activities ascribed as masculine. However, the boundaries of cultural acceptance are continually being extended. It is now more commonplace to find female boxers, rugby players, and body-builders, and some professional soccer clubs, such as Birmingham, are employing female managers.

This entry consists of two articles, each of which deals with the issue of gender and the military from a different perspective. The first, Male Identity and the Military, examines the concept of men as warriors and protectors. The second, Female Identity and the Military, emphasizes the relationship that women have had to war and the military. For more detailed related discussions, see Combat Effectiveness, Gays and Lesbians in the Military, Gender and War, Military Ideals, Sex and the Military, Sexual Harassment, Women in the Military.

Male Identity and the Military
Female Identity and the Military

As early as 31 March 1776, Abigail Adams wrote to her husband John, who was attending the Second Continental Congress, urging him to “remember the Ladies, and be more generous and favorable to them than your ancestors” (Butterfield etal., 1975, p. 21). Adams's admonitions to her husband had little impact on either the Articles of Confederation or the Constitution. It was not until 1920 that the Nineteenth Amendment was added to the Constitution, offering women that most basic element of citizenship—suffrage. And, today, despite long years of a concerted drive by women's rights groups to have an amendment guaranteeing equal rights ratified, the Constitution continues to afford women less protection from discrimination than men.

The Supreme Court often is looked upon as ahead of its time, or at least public opinion, in the expansion of rights to minorities. This has not been the case with the rights of women. Instead, as a general rule, the Court has lagged behind societal mores and realities when it has dealt with issues of concern to women.

From the Colonial Period to the Civil War Amendments

During the colonial period, suffrage was largely determined by local custom and usage. While there are few records of women voting, it is clear that some did, especially large landowners. Once individual states began to draft written constitutions, however, women's suffrage evaporated. Women also were excluded by the gradual shift from gender‐neutral property‐owning requirements to near universal male suffrage. This emphasis on male suffrage also fostered the codification of many of the practices Abigail Adams denounced as contributing to second‐class citizenship for women.

Recognition of their legally inferior status, however, did not come to women overnight. In 1848, in what is widely hailed as the first major step toward female equality under the Constitution, a women's rights convention was held in Seneca Falls, New York. Eight years earlier, in 1840, two women active in the American abolitionist movement had traveled to London for the annual meeting of the World Anti‐Slavery Society. After the long and arduous journey, Elizabeth Cady Stanton and Lucretia Mott were denied seating on the floor of the convention solely because they were women. Forced to take places in the balcony, they could not help but begin to see parallels between their status and that of the slaves they were trying to free (see Slavery). They resolved to call a meeting to discuss women's second‐class status, but the antislavery movement and issues in their own lives kept them from sending out a call to Seneca Falls until 1848.

At Seneca Falls, and at a later meeting in Rochester, New York, a series of resolutions and a Declaration of Sentiments were drafted calling for expanded rights for women in all walks of life. Both documents reflected dissatisfaction with contemporary moral codes, divorce and criminal laws, and the limited opportunities for women to obtain an education, participate in the church, and to enter careers in medicine, law, and politics. None of the participants at Seneca Falls or subsequent conventions for women's rights, however, saw the Constitution as a source of potential rights for women. Women's rights activists did, however, eventually see the need to amend the Constitution to achieve the right to vote.

While women continued to press for changes in state laws to ameliorate their inferior legal status, they also continued to be active in the abolitionist movement. During the Civil War, most women's rights activists concentrated on the war effort and abolition. Many who had been present at Seneca Falls or active in subsequent efforts for women's rights joined the American Equal Rights Association (AERA), an association dedicated to abolition and woman suffrage. AERA members saw the issues of slavery and women's rights as inextricably intertwined, believing that woman suffrage would occur when the franchise was extended to newly freed slaves.

Even the AERA, however, soon abandoned the cause of woman suffrage with its support of the proposed Fourteenth Amendment. When a majority of its members agreed “Now is the Negro's hour,” key women's rights activists including Stanton and Susan B. Anthony were outraged. They were particularly incensed by the text of the proposed amendment, which introduced the word male into the Constitution for the first time. Although Article II of the Constitution does refer to the president as “he,” the use of the word male to limit suffrage was infuriating to many women. Not only did Stanton and Anthony argue that women should not be left out of any attempt to secure fuller rights for freed slaves, but they were concerned that the text of the proposed amendment would necessitate the passage of an additional amendment to enfranchise women. How right they were. Soon after passage of the Fourteenth Amendment, the Fifteenth Amendment was added to the Constitution to enfranchise African‐American males previously ineligible to vote. Feverish efforts to have the word sex added to the amendment's list of race, color, or previous condition of servitude as improper limits on voting were unsuccessful. Women once again were told that the rights of African‐American men must come first.

Passage of the Fifteenth Amendment, and AERA's support of it, led Anthony and Stanton to found the National Woman Suffrage Association (NWSA) in 1869. Its relatively radical demands for the reform of family laws and standards of dress, as well as its support of a well‐known supporter of free love, Victoria Woodhull, led many to deride its more conservative demand for suffrage via a national constitutional amendment.

Litigating for Suffrage

The National Woman Suffrage Association's advocacy of controversial reforms led to a severe image problem for both the association and its goals. In 1869, to lend credibility to its cause as well as to short‐circuit the possibility of a long battle for a women's suffrage amendment, Francis Minor, an attorney and the husband of a prominent NWSA member, set forth his belief that women, as citizens, were entitled to vote under the existing provisions of the Fourteenth Amendment. Minor saw NWSA's possible resort to the courts as a means by which to gain favorable publicity for the organization. Victoria Woodhull's presentation to Congress in 1871, urging it to pass enabling legislation to give women the right to vote under the Fourteenth Amendment, provided the impetus for renewed efforts.

Minor, along with Susan B. Anthony, quickly seized the enthusiasm that Woodhull's suggestion created. Minor urged that test cases be brought to determine if the courts would obviate the need for additional legislative action. A number of legal scholars and judges had publicly agreed with Minor's arguments. Moreover, in rejecting Woodhull's request for enabling legislation, the House of Representatives noted that if a right to vote was vested by the Constitution, that right could be established in the courts without further legislation. More important, the newly appointed chief justice, Salmon P. Chase, had suggested that women test the parameters of the Constitution to determine if they were already enfranchised by its provisions.

Despite Chase's encouragement, prior references to women by the Supreme Court had generally accepted a limited role for them. In Dred Scott v. Sandford (1857), for example, Chief Justice Taney noted, “Women and minors, who form a part of the political family, cannot vote …” (p. 422). Ignoring this discouraging language, NWSA initiated several test cases hoping to have at least one heard by the Supreme Court. Somewhat fittingly, the only one to reach the Supreme Court was Minor v. Happersett (1875), which involved both Minors as co‐plaintiffs; married women then had no legal right to sue in their own names.

Unfortunately for NWSA, before Minor was appealed to the Supreme Court, the justices heard another case challenging gender discrimination under the Fourteenth Amendment. Bradwell v. Illinois (1873) involved a challenge to the Illinois State Supreme Court's refusal to admit Myra Bradwell to the practice of law because she was a woman. Bradwell's lawyer based her claim on the Fourteenth Amendment's clause concerning privileges and immunities. Because Bradwell's lawyer was cognizant of the suffrage test cases, he rejected the notion that women were enfranchised under the same provisions. He carefully differentiated the practice of a chosen profession from the right to vote, putting the Court on notice that not even all women were in agreement over the scope and reach of the Fourteenth Amendment. Despite the care he took to disassociate his client from NWSA's tactics, the court ruled 8 to 1 against Bradwell's petition.

The majority opinion in Bradwell—the first pronouncement from the Supreme Court on the issue of gender—was based on two grounds. First, because Bradwell was a citizen of Illinois, the Privileges and Immunities Clause of Article IV, section 2 of the Constitution was held inapplicable to her claim and to apply only to matters involving U.S. citizenship. Second, since admission to the bar of a state was not one of privileges and immunities of U.S. citizenship, the Fourteenth Amendment did not secure that right.2

Far more damaging to women's rights, however, was a concurrence written by Justice Joseph P. Bradley, which is often referred to as the promulgation of the “Divine Law of the Creator.” Writing for himself and two other justices, Bradley observed “a wide difference in the respective spheres and destinies of man and woman” and went on to insist that the “natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. … The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator” (p. 141).

Two years later, in Minor v. Happersett, the Court again ruled against the claim of women's rights. The Court rejected the argument that the judiciary was empowered to read into the Fourteenth Amendment the right of suffrage as a natural privilege and immunity of citizenship. Writing for a unanimous Court, the newly appointed Chief Justice Morrison R. Waite argued that the states were not inhibited by the Constitution from committing “that important trust to men alone” (p. 178). Nevertheless, the Court stressed that women were “persons” and might even be “citizens” within the meaning of the Fourteenth Amendment.

All of the gender discrimination cases heard by the Supreme Court during this era involved construction of the Privileges and Immunities Clause, and not the Due Process or Equal Protection Clauses of the Fourteenth Amendment. In the Slaughterhouse Cases (1873), argued and decided shortly after Bradwell, the Supreme Court meticulously examined the Fourteenth Amendment. In addition to limiting the constitutional significance of the Privileges and Immunities Clause, the Court concluded that the Equal Protection Clause “is so clearly a provision to that race [the Negro] that a strong case would be necessary for its application to any other” (p. 81). Although the Fourteenth Amendment would be revived as a potential tool for women's rights in the early twentieth century, women had yet to win a favorable decision against sex discrimination from the Supreme Court. While women were gaining greater rights within the family through the passage of state‐level married women's property acts, and were beginning to gain entry into institutions of higher education, the Court stuck rigidly to its interpretation that the Equal Protection Clause of the Fourteenth Amendment was intended primarily to protect African‐Americans (i.e., African‐American males) from discrimination, and it held fast to traditional notions concerning women's proper role in society.

Litigating to Protect Women

Although the Slaughterhouse Cases did not provide a useful precedent for women seeking to practice law or to vote, the Court's opinion planted the seeds for judicial adoption of a very broad state police power to enact laws to protect the public health, welfare, safety, and morals. This view was accepted in several subsequent cases. In Mugler v. Kansas (1887), however, in sustaining a law prohibiting the sale of intoxicating beverages, the Court built on the Slaughterhouse dissents of Justice Bradley and Stephen Field, announcing that it was ready to examine the substantive reasonableness of state legislation. According to Justice John Marshall Harlan, when state laws involving “the public morals, the public health, or the public safety” were at issue, the Court would “look to the substance of things” so as not to be “misled by mere pretenses” (p. 661). Ten years later, in Allgeyer v. Louisiana (1897), the Court, for the first time, invalidated a state statue on substantive due process grounds. And, in Lochner v. New York (1905), the Court similarly invalidated a law regulating the work hours of bakers.

Until then, the Court rarely looked to the substance of legislation in addressing its validity. The Court's earlier reading of the Due Process Clause of the Fourteenth Amendment (or the Fifth Amendment when federal legislation was involved) only guaranteed that legislation be passed in a fair manner, even though it might have an arbitrary or discriminatory impact (see Due Process, Procedural). According to the Court in Lochner, however, state laws would fail unless the provisions at issue were deemed reasonable under “common knowledge.” Thus, the Court refused to accept New York's claim that a ten‐hour maximum‐hour law for bakers was reasonable to ensure the health of bakers. Instead, the Court found that it unreasonably interfered with the employers' and employees' freedom of contract protected by the Fourteenth Amendment, and found no “common knowledge” to justify such actions by New York (see Due Process, Substantive).

The importance of common knowledge cannot be understated in chronicling the Court's treatment of gender. Often, “common knowledge” has been a substitute for the personal views of individual justices. As Bradley's “Divine Law of the Creator” opinion made quite clear, that view could easily lead to restrictions on the rights of women.

In the early 1900s, concern about the health, welfare, and morals of women led activists, particularly those closely allied with the growing woman suffrage movement, to press for state laws to upgrade the status of working women (see Police Power). Large numbers of women had begun to enter the labor force out of necessity. Most were confined to low‐paying jobs in substandard conditions, a circumstance highlighted by the 1911 Triangle Shirtwaist Factory fire in New York City, in which many young female workers lost their lives. Even before that time, however, efforts had begun to improve the working conditions of women and children. And, whether out of civic concern, moral outrage, or a sense of noblesse oblige, beginning in the 1890s, resolutions were adopted annually at suffrage conventions calling for improved conditions for women workers.

The organization most responsible for change, and for the Court's again addressing issues of gender, was the National Consumers' League (NCL). Through the hard work of its national staff and numerous affiliates, the NCL secured maximum hour or other restrictions on night work for women in eighteen states. Its leaders, therefore, immediately recognized how much they had at stake when the Supreme Court decided to review Muller v. Oregon (1908), a case challenging the constitutionality of an Oregon law that prohibited the employment of women for more than ten hours a day. (Muller, the owner of a small laundry, had been found guilty of violating the statute). When Muller was accepted for review and oral argument, the NCL went to work immediately. Its general secretary quickly asked Louis D. Brandeis, the brother‐in‐law of one of its most active members and already a famous progressive lawyer, to take the case. Brandeis did so under one condition—that he have sole control of the litigation, a condition to which Oregon gladly acceded, thus allowing the NCL to represent it in Court.

Numerous state court decisions involving protective legislation for women, as well as the Supreme Court's recent decision in Lochner, made it clear to Brandeis that a victory could be forthcoming only by presenting information or “common knowledge” that could persuade the Court that the dangers to women working more than ten hours a day made them more deserving of state protection than the bakers in Lochner, and by proving that there was something different about women that justified an exception to the freedom of contract doctrine enunciated in Lochner. Brandeis and the NCL would not challenge the Supreme Court's right, under substantive due process, to make that judgment.

At Brandeis's request, NCL researchers compiled information about the possible detrimental effects of long hours of work on women's health and morals, as well as on the health and welfare of their children, including unborn children. Brandeis stressed women's differences from men and the reasonableness of the state's legislation. In fact, his brief had but three pages of strictly legal argument and 110 pages of sociological data culled largely from European studies of the negative affects of long hours of work on women's health and reproductive capabilities. The information presented by Brandeis was not all that much different (except in quantity) from that presented on behalf of New York in Lochner, yet, the Court was persuaded by the contents of what has come to be called the “Brandeis brief.”

In holding that the Oregon law was permissible, the Court unanimously concluded “[t]hat woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence” (p. 241). Such a condition meant the state had an interest in protecting women's health through appropriate legislation. Muller's impact was immediate. State courts began to hold other forms of protective legislation for women constitutional, whether or not they involved the kind of ten‐hour maximums at issue in Muller. Thus, eight‐hour maximum work laws in a variety of professions, outright bans on night work for women, and minimum wage laws for women routinely were upheld under the Muller rationale.

The NCL's efforts to protect women from unscrupulous employers won the approval of the Supreme Court in several additional cases, but then ran into trouble in the early 1920s. In Stettler v. O'Hara (1917), a lower court decision upholding Oregon's minimum‐wage law for women was appealed to the Supreme Court. Forces opposed to governmental interference in contractual rights feared that a decision supporting additional protective legislation would open floodgates to more governmental regulation. Stettler's lawyers argued that a labor agreement between an employer and an employee could not be disturbed by the government. Because the Fourteenth Amendment forbade the state from denying any individual liberty without due process of law, they argued that freedom of contract was protected by the Fourteenth Amendment. The Court had been amenable to this kind of argument, as attested to by its Lochner decision.

Building on the Court's far‐ranging discussion of women and their physical, social and legal differences from men, Brandeis, again presenting the state's case, structured his arguments similarly to those offered in Muller, stressing the importance of a living wage to the health, welfare, and morals of women. Before the Court could decide the case, however, a vacancy occurred on the Court and Brandeis was appointed to fill it. Stettler was reargued in 1917 with Brandeis not participating. The Court divided 4 to 4, thus sustaining the lower court's decision.

The next NCL‐sponsored case, Bunting v. Oregon (1917), attracted a significant amount of attention. Felix Frankfurter, Brandeis's hand‐picked successor as NCL counsel, used the same kind of arguments Brandeis had used in Muller and Stettler. In a 5‐to‐3 decision (with Brandeis again not participating) the Court extended Muller to uphold an Oregon statute that established maximum hours for all factory and mill workers.

Although the NCL was victorious in these two cases, it had not anticipated the impact that the controversy within the suffrage movement over protective legislation would have on pending litigation. During the early twentieth century, women had come together to lobby for passage and then ratification of the Nineteenth Amendment. Once it was ratified, attempts were made to secure other rights for women. Women in the more radical branch of the suffrage movement, represented by the National Woman's Party (NWP), proposed the addition of an equal rights amendment (ERA) to the Constitution. Progressives and those in the NCL were horrified because they believed that an equal rights amendment would immediately invalidate the protective legislation they had lobbied so hard to enact.

When Adkins v. Children's Hospital (1923) came to the Court, the NWP was ready. Adkins involved the constitutionality of a Washington D.C., minimum‐wage law for women. The NWP filed an amicus curiae brief urging the Court to rule that, in light of the Nineteenth Amendment, women should be viewed on a truly equal footing with men. The division among women concerning equal rights and protective legislation was now exposed to public view. It was a debate that was to be resurrected again and again in the Court and public through the 1990s.

In Adkins, the Court ruled 5 to 4 that minimum‐wage laws for women were unconstitutional thus resurrecting Lochner, which Court commentators thought had been overruled sub‐silentio in Bunting. The Court was unwilling to overrule Muller, and thus simply distinguished it because it involved maximum hours and not wages. Nevertheless, the justices clearly believed that the Nineteenth Amendment conferred more rights upon women than just the right to vote. In noting women's newly emancipated status, the Court undoubtedly was responding at least in part to the pro‐equality arguments offered by the National Woman's Party.

Adkins, unlike Muller, was decided by the narrowest of majorities. But it stood as a good law and as a ringing endorsement of the notion of freedom of contract regarding minimum‐wage laws for women until 1937 (although the Court continued to uphold state maximum‐hour provisions). In West Coast Hotel v. Parrish (1937), the Court finally abandoned its endorsement of substantive due process, explicitly overruled Adkins, and upheld Washington state's minimum‐wage law for women. In hammering in the last nail in the coffin of substantive due process, the Court also appeared to be escaping from the constitutional need to establish a difference between men and women.

While the Court was enunciating a view that men and women were equal as the permissible objects of regulation, clearly they were not. Most states continued to bar or limit night work for women. And while a separate minimum wage for women could no longer be valid, employer practices of clustering women into certain positions at far lower wages than those paid to men continued to exist.

No new cases came to the Court involving women's rights until 1948. The NCL had obtained what it wanted, and the coalition of women's groups that had pressed for suffrage had largely disintegrated. Women were urged to support the war effort and, after the war ended, to return to their homes to their traditional roles as wives and mothers. Thus, few groups were left to press for women's rights in the legislatures or through the courts. The National Woman's Party continued to press for equal rights, and in fact, was able to see a proposed equal rights amendment introduced into every session of Congress after 1923. But it chose to stay out of litigation until the 1970s.

New Attempts to Expand Rights

In Goesaert v. Cleary (1948) and Hoyt v. Florida (1961), the Court again made it clear that women were not guaranteed additional rights under the Fourteenth Amendment or elsewhere in the Constitution. Although the Fourteenth Amendment is a pledge of protection against state discrimination, over the years the Court generally has applied a two‐tiered level of analysis to claims advanced under its provisions. Classifications based on race or national origin are considered *suspect classifications and are entitled to be judged by a severe test of strict scrutiny. As such, they are presumed invalid unless the government can show that they are “necessary to a compelling state interest” and that there are no less‐restrictive alternative ways to achieve those goals. In contrast, when the Court applies the less stringent level of ordinary scrutiny, which until 1976 included all other legislative classifications, a state need show only a conceivable or reasonable rationale for its action.

Until 1971, the Court routinely applied this minimal rationality test to claims involving discrimination against women. In Goesaert, for example, it sustained a statute that prohibited a woman from dispensing drinks from behind a bar unless she was the wife or daughter of the bar owner. Thus, forty years after Muller, the Court continued to justify differential treatment of women by deferring to a state's special interest in her social and “moral” problems. Under the reasonableness test, some rational basis for the law was all that needed to be shown.

In Hoyt, the Supreme Court accepted sex‐role stereotypes as a sufficient reason to uphold a state statute that required men to serve on juries while women could merely volunteer for jury service (see Trial by Jury). When Hoyt was convicted by an all‐male jury of second‐degree murder for killing her husband with a baseball bat, she argued that her conviction violated her rights to equal protection of the laws and her Sixth Amendment right to be judged by a jury of her peers. The Supreme Court disagreed, holding that the Florida statute was not an arbitrary and systematic exclusion of women. Justice John M. Harlan concluded that “Despite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men, woman is still regarded as the center of home and family life.” (pp. 61–62)

It was not until the dawn of the most recent women's movement that judicial perspectives on what was reasonable discrimination against women began to change. In 1966, the National Organization for Women (NOW) was founded. Soon after, a plethora of other women's rights groups were created. Most of these groups renewed the call for passage of an equal rights amendment (ERA) to the Constitution. While significant lobbying was carried out on that front, some groups, cognizant of the successes that the NAACP had in securing additional rights for African‐Americans through the courts, began to explore the feasibility of a litigation strategy designed to seek a more expansive interpretation of the Fourteenth Amendment. Although prior forays into the courts had ended unfavorably, some woman lawyers, in particular, believed that the times had changed enough for the justices (or some of the justices) to recognize that sex‐based differential treatment of women was unconstitutional. Many believed that the status of women and the climate for change was sufficiently positive to convince even a conservative Court that some change was necessary.

The American Civil Liberties Union (ACLU), long a key player in the expansion of constitutional rights and liberties, led the planning for a comprehensive strategy to elevate sex to suspect classification status, and thus to be entitled to strict scrutiny. Its first case was Reed v. Reed (1971). Ruth Bader Ginsburg, a member of the ACLU Board, argued the case before the Supreme Court. Her enthusiasm and interest in the expansion of women's rights via constitutional interpretation led the ACLU to found the Women's Rights Project (WRP).

At issue in Reed was the constitutionality of an Idaho statute that required males be preferred to otherwise equally qualified females as administrators of estates for those who die intestate. NOW, the National Federation of Business and Professional Women, and the Women's Equity Action League all filed amicus curiae briefs urging the Court to interpret the Fourteenth Amendment to prohibit discrimination against women on account of sex. Democratic Senator Birch Bayh of Indiana, a major sponsor of the ERA, wrote one of the briefs in which he attempted to apprise the Court of the glaring legal inequities faced by women and to link those inequities, at least in part, to the Court's own persistent refusal to expand the reach of the Equal Protection Clause to gender discrimination. Judicial decisions such as Goesaert and Hoyt, which allowed states to discriminate against women on only minimally rational grounds, made it clear to women's rights activists that a constitutional amendment was necessary if women were ever to enjoy full citizenship rights under the Constitution. But Reed was just a critical first step.

Chief Justice Warren Burger, writing for a unanimous Court in Reed, held that the Idaho statute, which provided “different treatment … to the applicants on the basis of their sex … establishes a classification subject to scrutiny under the Equal Protection Clause” (p. 75). With these simple words, the Supreme Court for the first time concluded that sex‐based differentials were entitled to some sort of scrutiny under the Fourteenth Amendment. But what type of scrutiny? According to Burger, who quoted Royster Guano v. Virginia (1920), the test was whether the differential treatment was “reasonable, not arbitrary,” and rested “upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstances will be treated alike” (p. 76). The Court then found that the state's objective of reducing the workload of probate judges was insufficient justification to warrant this kind of sex‐based statute. In fact, according to the Court, this was “the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause” (p. 76). Although the Court did not articulate a new standard specifically, most commentators agreed that sex‐based classification were not to be treated with more than ordinary scrutiny.

This major breakthrough heartened women's rights activists. It also encouraged the WRP to launch a full‐blown test case strategy akin to the one pursued by the NAACP Legal Defense and Education Fund that culminated successfully in Brown v. Board of Education (1954). WRP attorneys jumped at the opportunity to assist the Southern Poverty Law Center of Alabama with the next major sex‐discrimination case to come before the Supreme Court, Frontiero v. Richardson (1973). At issue in Frontiero was the constitutionality of a federal statute that, for the purpose of computing allowances and fringe benefits, required female members of the armed forces to prove that they contributed more than 50 percent of their dependent husbands' support. Men were not required to make a similar showing about their wives.

By an 8‐to‐1 vote, the Court struck down the statute, which gave male members of the armed forces potentially greater benefits than females. More important, though, four justices voted to make sex a suspect classification entitled to the strict scrutiny standard of review. While four other justices agreed that the statute violated the Equal Protection Clause, they did not agree that sex should be made a suspect classification. In fact, three justices specifically noted the pending ratification of the ERA as a reason to wait to allow the political process to guide judicial interpretation.

Three years later, in Craig v. Boren (1976), Justice William J. Brennan, author of the plurality opinion in Frontiero, formulated a different test, known as “intermediate” or “heightened scrutiny” test to apply in sex discrimination cases. Craig involved a challenge to an Oklahoma statute that prohibited the sale of 3.2 percent beer to males under the age of twenty‐one but to females only under the age of eighteen. In determining whether this kind of gender‐based differential violated the Equal Protection Clause, Brennan wrote that “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives” (p. 197). He also specifically identified two governmental interests that would not justify sex discrimination: neither administrative convenience nor “fostering ‘old’ notions of role typing” (p. 198) would be considered constitutionally adequate rationalizations of sex classifications. Shedding many of the stereotypes that had been at the core of Muller, Hoyt, and Goesaert, the Court specifically noted there was no further place for “increasingly outdated misconceptions concerning the role of females in the home rather than in the ‘marketplace and world of ideas’” (pp. 198–199). Continuing in this vein, in Personnel Administrator of Massachusetts v. Feeney (1979), the Court even went on to clarify this new standard, noting that any state statute that was “overtly or covertly designed to discriminate against women would require an exceedingly persuasive justification” (p. 273). In Feeney, however, the Court concluded that a veteran's preference law was intended to discriminate against non‐veterans—not women.

This new intermediate standard of review subsequently was used to invalidate a wide range of discriminatory practices including some Social Security, welfare and workmen's compensation programs, alimony laws, age of majority statutes and jury service exemptions. This is not to say that the Court no longer continued to be swayed by sex‐role stereotypes. In Rostker v. Goldberg (1981), for example, the Court considered congressional combat restrictions sufficient to rationalize the exclusion of women from the new draft registration requirements of the Military Selective Service Act (see Conscription). A majority of the Court accepted the government's position that the statutory exclusion of women from combat positions combined with the need for combat‐ready troops was a sufficiently important justification to meet the burden of the intermediate standard of review. And, in Michael M. v. Superior Court of Sonoma County (1981), the Court held that a California rape law, which applied only to males, did not violate the Equal Protection Clause. Justice William H. Rehnquist noted that the state's concern about teenage pregnancy was a sufficiently strong state interest to justify the statute. Rehnquist's opinion pointedly did not apply intermediate scrutiny.

In late 1981, the Court was joined by its first female member, Sandra Day O'Connor. It was not long before she and the other justices were faced with another sex‐based claim made under the Fourteenth Amendment. Mississippi University for Women v. Hogan (1982) involved a state policy that restricted enrollment in one state supported nursing school to females. Writing for the five‐member majority, O'Connor noted that when the purpose of a statute was to “exclude or ‘protect’ members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate” (p. 725). As one commentator noted, “she out‐Brennaned Justice Brennan” (Williams, p. 112). For example, not only did she go further than Justice Brennan had in recent opinions by suggesting in a footnote that sex might best be treated by the Court as a suspect classification, she also went on to resurrect the Feeney language saying that the state fell short of “establishing the exceedingly persuasive justification needed to sustain the classification” (p. 724).

Justice O'Connor's strong opinion in Hogan again brought to four the number of justices on the Court who apparently favored some sort of strict standard of review for sex‐based classifications that need “exceedingly persuasive justification” to withstand challenge. The elevation of William H. Rehnquist to chief justice and the appointments of Justices Antonin Scalia, Anthony Kennedy, and David Souter by Republican presidents, however, were taken by supporters of expanded women's rights as a signal that the courts were no longer a viable strategy to see strict scrutiny applied to sex‐based classifications. Thus, supporters of women's rights were heartened by the appointments of Ruth Bader Ginsburg and Stephen Breyer to the Court by Democratic president Bill Clinton.

In 1994, shortly after Justice Ginsburg's appointment to the Court, J.E.B. v. Alabama was decided. J.E.B. sought review of a lower court decision that had denied his claim that the use of peremptory challenges to exclude men from a jury deliberating a paternity claim against him violated the Fourteenth Amendment. Justice Harry Blackmun, writing for the Court, concluded that the state was unable to provide the exceedingly persuasive justification needed to justify these gender‐based peremptory challenges. The use of gender‐based stereotypes to select a jury pool, said the Court, is prohibited.

By the late 1990s, it had become clear that a narrow majority of the Court had reformulated the intermediate standard of review announced in Craig, replacing a state's need to show that a gender‐based classification “serve important governmental objectives” with the need for a state to show an “exceedingly persuasive justification” for the practice or law. In United States v. Virginia (1996), a challenge to Virginia's maintenance of the male‐only Virginia Military Institute (VMI), Justice Ginsburg, writing for a five‐person majority, used the exceedingly persuasive justification test in a manner “all but indistinguishable from strict scrutiny” (Brake, 1997, p. 35) to find the state support of VMI unconstitutional. Chief Justice Rehnquist's concurring opinion echoed this assessment of the standard used by the majority. At the very least, it appears that gender‐based classification will now be examined more skeptically than under the Craig standard. This “skeptical scrutiny” test recognizes the long history of gender discrimination and seeks to give substance to a standard used by the Court.

Still, under this standard, the Court has upheld challenged practices as constitutional. In Nguyen v. INS (2001), for example, five members of the Court concluded that a federal law that imposed different requirements for a child's acquisition of citizenship depending upon whether the citizen parent was male or female, did not violate the Equal Protection Clause. Writing in sharp dissent, however, were Justices O'Connor, Souter, Ginsburg, and Breyer, who concluded that the INS had failed to show an exceedingly persuasive justification for the sex‐based classification.

Recognizing the fragile nature of even the heightened middle tier standard of review and the Court's uneven application of its standards, women's rights groups continue to seek the addition of an equal rights amendment (ERA) to the Constitution, an effort that failed earlier. In 1972 Congress passed and sent to the states, a proposed ERA. By 1982, however, its supporters had failed to win ratification of the amendment in the requisite three‐quarters of the states. Most see an ERA as the only way to guarantee that women ever will be recognized as fully equal under the Constitution, but they are not particularly optimistic about its chances of success, although members of Congress continue to introduce it in each session of the Congress.

The Court has never been at the fore in the development of full equality for women. Yet, its decisions clearly add to a climate that frowns on blatant discrimination. Given the increasingly conservative nature of the Court, however, and the increasingly complex patterns of discrimination that are being presented to it, it is unlikely that the scope of constitutional protections for women will grow unless other societal changes take place. Women's active combat roles in the war in Iraq, for example, could possibly foreshadow a Court that would uphold a challenge to the discriminatory provisions of the Military and Selective Service Act.

Moreover, it is important to note that fewer and fewer cases involving constitutional issues of sex discrimination come before the Court each year, perhaps because women's rights groups are using their time and money to fend off challenges to Roe v. Wade (1973) and to keep abortion legal. Moreover, most of the “easy” cases have been decided, and there is fairly uniform application of at least the intermediate standard of review in lower courts. Thus, most cases involving sex discrimination that the Court chooses to hear now involve employment or educational discrimination litigated under Title VII of the Civil Rights Act or Title IX of the Educational Amendments of 1972. In Johnson Controls, Inc. v. International Union, UAW (1990), for example, which involved a company fetal‐protection policy that required women in certain hazardous positions to be sterilized as a condition of their continued employment, the Court ruled unanimously that the company's policies were not valid bona fide occupational qualifications permitted by Title VII. Likewise, in Davis v. Monroe County Board of Education (1999), the Court found that a school board was responsible for sexual harassment and thus violating Title IX when the school board acted with deliberate indifference.

Bibliography

• Deborah Brake, Reflections on the VMI Decision, American University Journal of Gender and the Law (1997), pp. 35‐42.
• L.H. Butterfield etal., eds., The Book of Abigail and John (1975).
• Ellen Carol DuBois, Feminism and Suffrage: The Emergence of an Independent Women's Movement in America 1848–1869 (1978).
• Sara M. Evans, Born for Liberty: A History of Women in America (1989).
• Susan M. Hartmann, From Margin to Mainstream: American Women and Politics Since 1960 (1989).
• Herma Hill Kay and Martha S. West, Sex Based Discrimination: Text, Cases, and Materials, 4th ed. (1996).
• Naomi B. Lynn, ed., Women, Politics and the Constitution (1990).
• Karen O'Connor, Women's Organizations' Use of the Courts (1980).
• Wendy Williams, Sex Discrimination: Closing the Law's Gender Gap, in The Burger Years, edited by Herman Schwartz (1987), pp. 109–124

— Karen O'Connor

While it is generally accepted that sex is biologically determined, societies construct appropriate behaviour for each gender, thus producing local gender cultures. Gendered divisions of labour and gendered divisions of spheres exist throughout the UK, although differentiation and separation seem to be more marked in northern regions, and both enact and reproduce gender inequalities.

There are signs of a transformation in gendered power relations: employment rates and life cycle patterns of participation in work now differ little between men and women, girls outstrip boys' performance up to and including first-degree level, and pay differentials between men and women have fallen; in 1985 men earned 1.55 times more than women, but 1.42 times more in 1995 (some of this is due to an increase in low-paid male jobs and some to the minimum wage). However, although women in the UK as a whole have fewer full-time jobs, and less job security, differentials between women—in wages, opportunities for full-time work, and job security—are astonishingly class-dependent.

The ordering of space is strongly gendered, and may also reinforce gender stereotypes; when space is constructed so as to make women feel unsafe (secluded woodlands, dark alleyways, ill-lit multi-storey car parks), they are much more aware of their vulnerability and lack of physical strength, and this will further constrain their movements, so fulfilling the stereotype that women are less adventurous than men.

Gender may be seen as arising from the norms of (hetero)sex, and its production, reproduction, and transformations take place in different ways, at different times, and in different places. As such, gender is of interest to the geographer, and the innovative views of the body as ‘a surface to be mapped…a boundary between the individual subject and that which is Other…but also as a permeable boundary which leaks and bleeds and is penetrable’ (L. McDowell and M. Sharpe (eds.) 1997) have thrown new light on gender and geography.

For more information on gender, visit Britannica.com.

The distinction between sex and gender is attributed to the anthropologist Margaret Mead (Sex and Temperament in Three Primitive Societies, 1935). Sex is the biological category, whereas gender is the culturally shaped expression of sexual difference: the masculine way in which men should behave and the feminine way in which women should behave. It is emphasized by de Beauvoir that in this system woman is the Other: the kind of person whose characteristics are described by contrast with the male norm. It is a central aim of much feminist thought to uncover concealed asymmetries of power in differences of gender, and to work for a society in which the polarization of gender is abolished.