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85 N.Y.U. L. Rev. 83 (2010)
The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law

handle is hein.journals/nylr85 and id is 85 raw text is: THE ANTI-STEREOTYPING PRINCIPLE IN CONSTITUTIONAL SEX DISCRIMINATION LAW CARY FRANKLIN* This Article argues that the anti-stereotyping theory undergirding the foundational sex-based equal protection cases of the 1970s, most of which were brought by male plaintiffs, has powerful implications for current controversies in sex discrimination law which have long been obscured by the dominant narrative about these cases. For decades, scholars have criticized Ruth Bader Ginsburg for challenging the con- stitutionality of sex-based state action in cases featuring male plaintiffs. They have argued that the predominance of male plaintiffs caused the Court to adopt a narrow, formalistic conception of equality incapable of rectifying the subordination of women. This Article offers a new account of the theory of equal protection ani- mating Ginsburg's campaign. It argues that her decision to press the claims of male plaintiffs was grounded not in a commitment to eradicating sex classifications from the law, but in a far richer theory of equal protection involving constitutional limi- tations on the state's power to enforce sex-role stereotypes. This anti-stereotyping theory drew on the arguments of transnational movements for sex equality that emerged in the 1960s, including the movement to combat sex-role enforcement in Sweden and the women's and gay liberation movements in the United States. The Burger Court incorporated the anti-stereotyping principle into sex-based equal pro- tection law in the 1970s, but the significance of this doctrinal shift has long been overlooked, in part because the Court initially applied the new doctrine only in a limited set of domains. In recent years, the Court has extended anti-stereotyping doctrine beyond the provisional limitations established in the 1970s and in ways that are deeply relevant to questions at the frontiers of equal protection law today. INTRODUCTION ................................................. 84 1. THE EMERGENCE OF ANTI-STEREOTYPING THEORY IN THE 1970s ........................................ 91 A. The Philosophical Origins of the Sex-Role Critique....................................... 92 B. Women's Rights and The Emancipation of Man in Sweden....................................... 97 C. The Revolt Against Sex-Role Structure in the United States .................................. 105 1. Women and Men ........................... 106 *Copyright @ 2009 by Cary Franklin, Irving S. Ribicoff Fellow, Yale Law School. J.D., Yale Law School, 2005; D.Phil., University of Oxford, 2003; B.A., Yale University, 1998. For helpful comments on earlier drafts of this article, I am grateful to Bruce Ackerman, Susan Appleton, Katharine Bartlett, Nancy Cott, Joseph Fishkin, Owen Fiss, Katerina Linos, Serena Mayeri, Martha Minow, Robert Post, Neil Siegel, and, especially, Reva Siegel. Thanks are also due to the Milton Fund at Harvard University for its generous support of this project and the American Society for Legal History for recognizing this paper with the Kathryn T. Preyer Scholars Award. 83 Reprinted with Permission of New York University School of Law

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